Cases from June 2015

The Andersons were livin’ large in the (very) flatlands of far north Minnesota … at least until the swampland next to theirs got sold to the State.

The Minnesota DNR built the Halma Swampland Wildlife Management Area for the tourists from down south. You know, just a place to watch birds, hunt deer and bear, and be drilled by mosquitoes the size of floatplanes.

If that wasn’t bad enough, the then State put up signs to stop visitors — including the neighboring Andersons — from racing their ATVs, cars and pickups up and down the wildlife trails. A year later, the State fenced off the boundaries, right across one of the trials.

Sadly, the Andersons’ raison d’être – a Minnesota term meaning “it’s what we live for” – for living next to the swamp was to race their ATVs, cars and pickups up and down the wildlife trails. So they hired one of them fancy-pants city slickers with an armful of lawbooks. He told the Anderson clan that they had a prescriptive easement, that is, a right to run their pickups and cars up and down the WMA trails, because they had done it for so long.

The State unsurprisingly took a dim view of the Andersons’ activities, arguing that the recreational use statutes — not to mention Minnesota’s policy of encouraging private recreational use of land (but probably not pickup trucks being driven up and down trails) — meant that no one could acquire a prescriptive easement on recreational lands.

There are only 78 people in Halma – so if you don’t drive your pickup through the swamp muck, there’s not a lot to do.

The Court had to balance competing interests here. Although one might expect that the judiciary would bend over backwards in favor of a state-run recreational area, it played the case right down the middle. The Andersons won their prescriptive easements, but the court held the easements were not transferable, and they would expire on the deaths of the particular Andersons named in the suit.

The DNR put up signs prohibiting motorized vehicles on the property, and fenced across a trail where it enters the WMA. Because the Andersons had used the trails on what was now state land for more than 60 years, often driving cars, pick-up trucks, and all-terrain vehicles on them, they sued the state, claiming a prescriptive easement. The trial court found the Andersons had a prescriptive easement by motor vehicle over five trail segments in a section of the WMA. The court held that the right is not assignable and will terminate with the lives of the named Andersons. The state appealed.

Held: The Andersons had a right to the prescriptive easement. The Court described an easement as an interest in land in the possession of another which entitles the easement owner to a limited use or use of the land in which the interest exists. Whether a prescriptive easement exists is determined in a manner similar to title by adverse possession.

A prescriptive easement may be found if the person claiming the easement has acted in a manner “hostile and under a claim of right, actual, open, continuous, and exclusive.” Adverse possession may be maintained by “tacking,” when the current adverse possessor obtained the property through transfer or descent from a prior adverse possessor. The state argued that the trial court erred by granting an easement to the Andersons when Minnesota law encouraged landowners to permit public recreation on their land and purports to protect landowners from claims arising from such recreational use. The trial court was not unsympathetic to the argument, but because the recreational-use statute was passed in 1994, it applied only to causes of action arising on or after that time.

The Court of Appeals agreed, noting that while Minnesota encouraged public use of lands and waters for beneficial recreational purposes since 1961, only in 1994 was the law changed to prohibit the creation of adverse easements on private recreational lands. The Andersons had used the property and trails beginning in the 1930s, and use continued uninterrupted until 2002, when the DNR installed signs, and 2003, when the DNR erected a fence across a trail. The evidence showed that the Anderson’ adverse use of the trails extended for 15 or more years before the state’s ownership of the land.

The state argued, however, that the trial court erred by concluding that the Andersons had established a prescriptive easement because, since recreational use is encouraged by Minnesota law, the element of hostility could not be shown. What’s more, the state contended, the district court erred by determining that respondents’ adverse use of the WMA was visible.

The Court held there was ample evidence that the Andersons developed and used the trails, and it has long been recognized in Minnesota that a person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement. There is no dispute that there were existing trails when the state bought the land in 1989. That fact was sufficient to sustain the trial court’s findings.

A dissenting judge said the Andersons’ use of the land was permitted by statute and state policy, and was neither inconsistent with the rights of the property owners and was not hostile. Because the Andersons’ use was not hostile, he argued, he reasoned, they have not obtained a prescriptive easement. As we all know, the dissenting opinion is the losing jurist’s lament (if not whine), and – while sometimes interesting and often scathing – doesn’t really count.

Case of the Day – Tuesday, June 2, 2015

A NUISANCE PINE IN THOUSAND OAKS

A lone pine … but not in Thousand Oaks

Alert reader Rock Maple wrote us last week with a very good question. His inquiry is deceptively simple. He has a lone pine in Thousand Oaks, California. Rock asks: “I have a 50 year old pine tree and it is now overhanging on the neighbor’s property. He wants it trimmed back. I have refused. Can he legally trim my tree back?”

“Well, sure he can!” the rest of you readers say. After all, you’re fairly expert at the Massachusetts Rule. Normally we would agree. But this is California we’re talking about, so nothing’s simple.

We’ll answer Rock’s question over the next three days, looking at how common-law notions of self-help enshrined in Michalson v. Nutting, the grand-daddy of encroachment cases that gave use the Massachusetts Rule, are applied in California.

In today’s case, Bonde v. Bishop, Mr. Bishop had a big old white oak tree he loved as much as our reader is attached to his pine. But the oak was overhanging his neighbor’s place, and his neighbor wanted it trimmed back. Sound familiar? But Mr. Bishop’s oak had some problems. It shed branches quicker than the FIFA sheds bribes. It had already taken out Mr Bonde’s fence, his garage and (very nearly) his head. Cleaning up after the tree was a daily chore, and the old tree was so dangerous that the Bondes wouldn’t leave their baby on the patio (probably a good idea, tree or no tree, but that’s a parenting decision).

The Bondes asked Mr. Bishop for permission to trim the tree, but he told them to touch not a single bough, or he’d sue. So they sued Mr. Bishop first, this being California (or just this being America), asking the Court to declare the tree a nuisance and force him to remove it.

The Court agreed. California does indeed follow theMassachusetts Rule, which meant that the Bondes had the right to trim the tree’s branches overhanging their property. But here, the problem went beyond that. Mr. Bishop’s white oak was a nuisance under California law, the Court held, because of the pervasive damage it caused. The Court, perhaps reacting to the extent of the mess as well as Mr. Bishop’s intransigence, ruled that a tree owner is liable for damage — even insignificant damage — is caused to his neighbor.

So it would appear that our reader’s neighbor would have the right to trim the tree back to the property line. In fact, if the 50-year old pine is a persistent branch-shedder, it might be a nuisance, and our reader’s refusal to let the neighbor trim it could leave him in Mr. Bishop’s position: having to remove the offending branches himself.

But — and this is California, so there’s always an “on the other hand” — as we will see tomorrow, there are limits on what the neighbor can do, even on his own property.

The Bondes could no longer park their kid on the back patio, out of fear that a falling branch would bean him. The bambino was not happy …

Bonde v. Bishop, 112 Cal.App.2d 1, 245 P.2d 617 (Ct.App. Div. 1, 1952). Some of the branches of Bishop’s white oak tree were overhanging Bonde’s property by 25 feet, about 40 feet off the ground. Early one September morning, a large limb broke loose from the tree, smashed through Bonde’s garage and destroyed a section of fence. Bishop said it was not his responsibility, and Bonde’s insurance paid for repair. The tree continually dropped smaller branches on Bonde’s roof, driveway and patio. One small branch almost hit Bondes while he was standing in the middle of his driveway. During the rainy season it became a two-hour job every Sunday to clear tree debris from the gutters and the drainspouts. The Bondes were afraid of the overhanging limbs, and stopped leaving their baby out in the patio.

The debris required the Bondes to sweep the patio and driveway daily and rake the lawn before mowing. They put screens on the gutters so they would not be required to clean them. When Mrs. Bonde told Mr. Bishop that the Bondes desired the tree cut back to their line, he not only refused but warned her that if they had it cut back and damaged the tree in any way, he would sue them. Nevertheless, after the limb fell Bishop had the foliage thinned out. Finally, Bonde sued Bishop, asking the trial court to declare that Bishop’s tree was a nuisance.

The court agreed, and ordered Bishop to abate the nuisance and awarded damages.

Mr. Bishop’s white oak dropped branches with regularity.

Held: The Court agreed the tree was a nuisance, and ordered Bishop to abate the nuisance. The Court explained the rule in California generally is that to the extent that limbs or roots of a tree extend upon adjoining landowner’s property, the adjoining owner may remove them, but only to the property boundary line. Nevertheless, the remedy isn’t exclusive. An owner of a tree, the branches of which overhang adjoining property, is liable for damages caused by overhanging branches. The Court said that even insignificant damage is enough for the statute — might this include falling leaves in the fall, one wonders — because the significance of the damages goes to the amount the plaintiff can recover, not to whether the plaintiff has a case on which to sue to begin with.

But, the Court said, absent the tree being a nuisance, no landowner has a cause of action from the mere fact that branches overhang his premises. Instead, the adjoining landowner’s right to cut off the overhanging branches is a sufficient remedy, indeed, the only remedy. In order to obtain a court owner that the tree’s owner do something, an adjoining landowner must show that the tree is a nuisance under the nuisance statutes.

The Court observed sadly that “apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do.”

Case of the Day – Wednesday, June 3, 2015

LIMITS OF SELF-HELP

All right, your last weekend of spring is over … time to get serious about summer fun. Monday was the first meteorological day of summer. You’ve already wasted over 2 percent of the season. Start channeling Mungo Jerry …

But first, we trust that you recall that yesterday we tackled a question sent to us by our California correspondent, Rock Maple of Thousand Oaks. His neighbor has demanded that he trim back his 50-year old pine tree, the branches of which hang over the neighbor’s place, and he wondered whether the neighbor might be able to start the chopping himself, even without Rock’s permission.

We determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line. Of course, California seems also to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a neighbor force someone like Rock to remove the tree himself if it is a nuisance.

But the Rockster was focused on whether his neighbor could fire up his chainsaw. While yesterday’s case said perhaps he can, today’s case should be a caution to him – especially because it’s a California case.

Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk. He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk. The root cutting so weakened the tree that it started dying and was in danger of falling. Mr. Booska had to take the tree down, and he promptly sued.

The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in yesterday’s case of Bonde v. Bishop. Not so, said the appeals court. Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree. The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

Unfortunately, this isn’t the final answer. The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method. We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required root cutting that would necessarily be fatal.

In the situation Rock presented to us, he didn’t report why his neighbor wanted the pine tree trimmed back. In discussions with his local lawyer, Rock will have to consider whether the tree could be found to be a nuisance (as in yesterday’s case), a finding that Bonde suggests can be easily made in California. Even if it is not a nuisance, Rock’s neighbor can probably start hacking away on his side of the property line, but the hacking has to be done in a way that weighs the neighbor’s legitimate aims — whatever they are — against the health and safety of the tree.

Oh, the complexity! And to make it worse, tomorrow we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241 (Ct.App. Div.1, 1994). Attorney Booska, representing himself in this action, sued his neighbor Mr. Patel. The roots of a 40-year-old Monterey pine tree owned by Mr. Booska extended into Mr. Patel’s yard. Mr. Patel hired a contractor to excavate along the length of his yard and sever the roots of the tree down to a level of about 3 feet. Mr. Booska complained that Mr. Patel’s actions were negligently performed, and the tree became unsafe, a nuisance, unable to support life, and had to be cut down at Mr. Booska’s expense. The complaint alleged causes of action for negligence, destruction of timber and nuisance. The trial court granted summary judgment for Mr. Patel, holding that under Bonde v. Bishop, Mr. Patel had an absolute right to sever the roots without regard to the effect on Mr. Booska. Mr. Booska appealed.

Held: The Court of Appeals reversed. It held that adjoining landowners do not have absolute privilege to sever encroaching tree roots without regard to reasonableness of their action or consequences to neighbors. Instead, neighbors act reasonably, and failure to do so could be basis for recovery of damages. The Court distinguished the rulings in Bonde v. Bishop and Grandona v. Lovdal, noting that neither of those cases discussed the limits on what an adjoining property owner could do.

The Patels and Booskas apparently hadn’t gotten this word …

The Court observed that “[i]n the instant case, Patel has not addressed the issue of negligence in his summary judgment motion but contends that he has an unlimited right to do anything he desires on his property regardless of the consequences to others. No authority so holds. ‘No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.’”

The appeals court was apparently disturbed that these neighbors hadn’t found the time or inclination to be neighborly about the dispute. It cites language from Bonde v. Bishop: “‘Apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do’.”

The Court then pointedly said, “It seems, in the instant case, that neither party has considered what would be the neighborly thing to do to resolve this problem. While we express no opinion on the appropriate outcome of this case, we find that there are disputed factual issues to be resolved.”

The Court reversed the decision, and sent the case back to the trial court to resolve the issue of negligence.

Case of the Day – Thursday, June 4, 2015

SELF-HELP MEETS CATCH-22

Those of us old enough to remember the ‘60s – and if you were around then, you probably were in such a state that you don’t remember them – recall Joseph Heller’s book, Catch-22. The short rocket is this: the “Catch 22” is simply illustrated – if one is crazy, one can be discharged from the army. But one has to apply for the discharge, and applying demonstrates that one is not crazy. As a result, one will not be discharged.

The Catch 22 typifies “bureaucratic operation and reasoning,” which brings us to today’s conundrum. An alert reader in Toad Lick, Arkansas, wrote to complain that a branch from his neighbor’s oak tree hangs over his property to a great extent, dropping leaves and acorns. He says it’s so big and long that it’s a hazard, and he fears that it will fall on his children. What, he wonders, can he do?

Oh, yawn, you say. Being a faithful reader of this blog, you immediately recognize that the solution to this is the Massachusetts Rule, which permits a homeowner to use “self-help,” trimming the branches back to his property line. Ah, but there’s a twist to this particular problem. If our afflicted homeowner trims to the property line, he will leave a six-foot or so stub of a branch because he cannot go onto the neighbor’s property to trim the branch all the way to the trunk. The city, he tells us, requires that the branch be trimmed all the way to the trunk, or it will fine him.

At this point, the notion of a lousy $25 fine leaves you still unimpressed, and you’re about to click off this blog for one of those Internet sites that no one admits to checking out, but we all do, anyway. Not so fast. It gets better. Our homeowner complains that the City’s fine for improper trimming is $400 per inch of diameter of tree, and the diameter of the offending oak (at 4 feet above the ground) is something like 36 inches. That’s right, he’s looking at shelling out $15,000 in fine (plus tree trimming costs), all to cut down a single hazardous branch.

Or so our afflicted correspondent says. Frankly, we were perplexed by his report. If things were as our complainant said they were, one effectively could not exercise self-help without his or her neighbor’s cooperation. That seemed to eviscerate the Massachusetts Rule, taking the “self” right out of “self-help.” It’s the classic Catch 22 – you cannot exercise self-help without your neighbor’s cooperation, which – if you can get it – pretty much makes it anything but self-help.

Years of law practice have made us acutely aware of a sad fact of life: clients get it wrong. They get it wrong all the time. You could be cynical and say that clients lie, but we would never suspect that. Indeed, you don’t have to go that far. Whether they’re simply confused, perceive it incorrectly, or flat out fib, the result’s the same.

Here, the Toad Lick City Code tells a somewhat different story. The ordinance requires that any trimming in the city has to be done according to ANSI Standard A300, which sets out best practices for tree maintenance. If a trimmer adheres to the standard, what happens to the tree is not his or her fault. If the trimmer does not trim to the ANSI standard, and the tree later suffers “substantial destruction” – that is, it is killed or becomes a hazard tree – the trimmer is liable. So our homeowner’s trimming won’t lead to a fine unless the tree is “substantially destroyed.” And that will take a few years to determine.

Talking to the Toad Lick City Forester’s office, we found out a few other facts as well, details our correspondent homeowner overlooked telling us. It appears that our afflicted complainant may not be all that concerned with the fate of his children playing under the branch. Instead, he wants to build a swimming pool, and the branch is directly over the new installation. What’s worse, the branch spoils his view.

Whew! We haven’t had a problem like this since a law school final exam. Where to start? First, our unhappy pool-building homeowner should hire an arborist. If the arborist agrees that the branch is a hazard, our man is on much more solid ground. The neighbor should be placed on notice of the hazard determination, and the neighbor’s insurance company should be told, too. We bet the insurance company will convince the recalcitrant neighbor to let our homeowner trim to A300 standards without a whimper of protest.

But what if the branch isn’t a hazard (as we’ve heard)? Our homeowner might still have an arborist trim it to the property line according to accepted industry standard (if such a thing is possible). If it is not, our homeowner may have to risk lopping the branch off at the property line, and hoping that the tree doesn’t die. If it does, the City is going to assert that it was the homeowner’s improper trimming that caused the hazard (or death).

We suspect our homeowner won’t find an arborist who will cut the branch other than at the trunk (which cannot be done without the neighbor’s OK). If the homeowner is going to go ahead with the pool, he may just have to cut the branch at the property boundary and hope for the best. If the tree withers and dies within a few years of the surgery, well, then, he has a problem.

That should not be surprising. Even without the city ordinance, the suggestion has often been made that Massachusetts self-help requires first that the overhanging branches be doing more than just causing shade or dropping leaves. In Herring v. Lisbon Partners, the court suggested that Massachusetts self-help was only available when the overhanging branches or intruding roots were doing more than your average tree: that is, they were a danger or a nuisance, breaking up pavement or damaging roofs. It could well be that courts will rule that self-help isn’t available merely to improve the view (although such a ruling hasn’t come down anywhere just yet).

Thus, it could be that our homeowner really isn’t entitled to do much of anything if he cannot get an arborist to certify that the branch is doing more mischief than your average branch. Endangering kids is one thing: spoiling a view is something else. If the branch is a hazard, the homeowner might have a defense to trimming it to the property line, even if the tree dies – the defense of necessity.

Our complaining homeowner told us that he doesn’t want to end up in a lawsuit, or defending himself from a $15,000 fine. That’s perfectly understandable. In that case, his best course is obvious, if the branch is a hazard (as he says it is). If his arborist will give him an opinion that the branch is a hazard, the homeowner should make sure the neighbor and the neighbor’s insurance carrier are both aware of that. Certified mail, return receipt requested, would be prudent. We suspect our homeowner will be happily surprised at how quickly the insurance carrier persuades his neighbor to cooperate.

Lawrence Peter postulated the idea years ago as a corollary to the Peter Principle: pull is always stronger than push. If our homeowner gets the neighbor’s insurance company on board, he’ll have a lot of pull.

Fine aside, could our homeowner be liable for causing substantial damage to his neighbor’s tree by not trimming according to A300 standards? Remember, our complainant wants to avoid litigation, trimming away the offending branch in a way that leaves him legally bulletproof. Even without the city’s statutes requiring trimming in compliance with A300, yesterday’sBooksa case from California should serve as a cautionary tale.

We have previously determined that California generally recognizes the Massachusetts Rule, which permits a neighbor to use “self-help,” trimming the branches back to the property line. Of course, California seems also to permit use of the private nuisance laws — something that seems like the Hawaii Rule or Virginia Rule — to let a homeowner like our correspondent force someone like his neighbor to remove the branch himself if it is a nuisance.

You recall that Mr. Patel was unhappy that the roots from Mr. Booska’s pine tree had heaved some of Mr. Patel’s sidewalk. He excavated along the edge of his yard down to three feet, severing the roots of the pine tree that had encroached under his sidewalk. The root cutting so weakened the tree that it started dying and was in danger of falling. Mr. Booska had to take the tree down, and he promptly sued.

The lower courts said that Patel had an absolute right to cut the roots on his property, citing the holding in Bonde v. Bishop. Not so, said the appeals court. Instead, Mr. Patel had an obligation to cut the roots in a reasonable manner that would achieve his aims — to stop sidewalk heaving — without undue harm to the tree. The Court held that “no person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result.”

Unfortunately, this isn’t the final answer. The Booska court was swayed by testimony that Mr. Patel could have protected his sidewalks with a much less aggressive method. We don’t yet know what the result would be if the only means of protecting Mr. Patel’s sidewalk would have required cutting that would necessarily be fatal, but our correspondent could provide us with the answer if he lands in court over cutting the branch to the property line but not in accordance with A300.

In the situation our writer presented to us, his explanation for wanting the branch removed clashed with what the city understood the real motivation might be. In discussions with his arborist, our neighbor will have to consider whether the branch could be found to be a nuisance, a finding that Bonde suggests can be easily made in California. Even if it is not a nuisance, our correspondent maybe can start hacking away on his side of the property line, but the hacking should be done according to A300. Assuming that it cannot be (because the neighbor won’t permit trimming to the trunk), the trimming has to be done in a way that weighs our correspondent’s legitimate aims — whatever they are — against the health and safety of the tree. And preserves the tree, thus avoiding the $15,000 fine.

Oh, the complexity! And to make it worse, tomorrow we’ll look at a Kafkaesque result where a neighbor’s right to cut back a tree can’t be exercised without approval of the property owner, resulting in an old-fashioned California SLAPP-down.

Not to sound like the Bar Association, but we suggest that all of these legal gyrations well illustrate why spending a few bucks at your local counselor-at-law might be prudent – not just in California, but wherever you live.

Only in California could a tree-trimming case end up as a free speech issue.

For the past few days, we’ve been exploring the question raised by our faithful reader Rock Maple of Thousand Oaks, California, who wondered whether his neighbor could trim the branches from Rock’s pine that were overhanging the neighbor’s place. We concluded that self-help was available to the neighbor, within limits. Today, we look at what happens when good old-fashioned common law self help runs into bureaucracy.

The Dilbecks wanted to add a second story to their house, but their neighbors’ oak tree had extended its branches so close to the Dilbecks’ place that they had to be trimmed back in order to make room. No problem, right? We all know that self-help is available to the Dilbecks anywhere in California. Sure, but it turns out the Los Angeles isn’t just anywhere. In LA, oak trees are “protected,” and before trimming the oak, the Dilbecks had to get a permit from the County. And the County wouldn’t issue a permit unless the tree’s owner signed on to it.

So much for self-help. The Dilbecks sued, asking that the County be ordered to issue the permit and that their neighbors be found liable in trespass for the tree (the theory being that the neighbors let the branches intrude over the Dilbecks’ lawn). And here’s where it got even more complicated. California has a statute addressing litigation known as “strategic lawsuits against public participation,” the so-calledanti-SLAPP statute. This mouthful with the catchy name is intended to stop oppressive lawsuits intended to keep people from exercising their rights to free speech. There’s a whole cottage industry in the Golden State surrounding SLAPP actions. And as with a lot of other good ideas (such as RICO), the anti-SLAPP statute is another tool in the canny lawyer’s arsenal, something else with which to bludgeon a plaintiff.

Here, the neighbors complained that the Dilbecks were trying to force them to petition the County to let the tree get trimmed, and the suit should be thrown out as violating the anti-SLAPP statute. The trial court refused dismiss the action. The Court of Appeals agreed, holding that the Dilbecks weren’t demanding that the neighbors do anything. They were asking the County to do something, and they were suing the neighbors for trespass because of the tree. California law would let them collect money damages if the encroaching tree was a nuisance (Bonde v. Bishop held as much). So whether the Dilbecks win on the merits or not, the action was not a SLAPP suit, and it wouldn’t be dismissed.

Whew! Makes you long for the simple, ol’ Massachusetts Rule … no permits, no lawsuits, just an aggrieved landowner with a chainsaw.

Oak trees are protected by California state law. The County of Los Angeles had adopted regulations to preserve and protect oak trees, requiring a permit to cut down mature oak trees or to prune their larger branches. The Dilbecks applied to the County for a permit, but the County had not approved it because it took the position that only the owner of the tree may obtain a pruning permit, and the Van Schaicks had not acquiesced. So the Dilbecks brought suit against the Van Schaicks and the County for declaratory relief and trespass. They alleged the oak tree growing on the Van Schaicks’ property had encroached onto the their land and interfered with their ability to add a second story to their home. The suit said the County refused to grant the permit because the Dilbecks were not the owners of the tree. The trespass cause of action alleged the oak tree branches were encroaching on the Dilbercks’ land, and asked for an order permitting the Dilbecks or an independent contractor to prune the tree.

The Van Schaicks filed a special motion to strike pursuant to the anti-SLAPP statute,Code of Civil Procedure §425.16, asserting that the complaint was based on their refusal to support the Dilbecks’ oak tree permit application and therefore attacked their right to free speech. They further argued that the trespass claim lacked merit because the law forbade the Van Schaicks to prune or cut the offending oak tree branches.

The Dilbecks contended that their action did not fit within the definition of a SLAPP suit and that, in any event, their complaint had merit. They denied that the complaint sought to compel the Van Schaicks to support or sign the oak tree permit. The trial court denied the Van Schaicks’ motion to strike, finding that they had not demonstrated that they were being sued for engaging in protected activity. Instead, the trial court held, they were just being sued for trespass. The Van Schaicks appealed the court’s denial of their motion to strike.

Held: The Dilbecks’ complaint did not arise from acts undertaken in furtherance of the Van Schaicks’ rights of free speech or petition, and the Van Schaicks’ attempt to get it dismissed was rejected. The California Legislature enacted the anti-SLAPP statute in response to its perception that there has been an increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and to petition for the redress of grievances. The anti-SLAPP statute provides a procedure for the court to dismiss at an early stage non-meritorious litigation meant to chill the exercise of free speech rights. The statute requires the trial court to engage in a two-step process when determining whether a motion to strike should be granted, first, whether the defendant has made a threshold prima facie showing that the acts of which it complains were ones taken in furtherance of its constitutional rights of petition or free speech in connection with a public issue, and two, whether there is a probability that the plaintiff will prevail on the claim.

The issue here, the Court said, was whether the complaint arose from conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. The Van Schaicks contended the suit sought to compel them to petition the County for discretionary relief from the oak tree statutes. The Court disagreed, holding that their characterization of the complaint was wrong. In fact, the Court said, the suit merely sought to compel the County to review the merits of the permit application submitted by the Dilbecks, and requested an order permitting the Dilbecks or their arborist to prune the tree. The complaint did not seek to compel the Van Schaicks to become personally involved in the permit application process in any way, and thus did not violate the anti-SLAPP statute.

The Van Schaicks contended that the complaint would indirectly force them to speak because a judgment in favor of the Dilbecks on the trespass action would necessarily require the Van Schaicks to petition the County of Los Angeles for discretionary relief from the Oak Tree statute. The Court rejected that argumnt, finding that the Van Schaicks’ position was based on the incorrect assumption that the only remedy available for trespass was injunctive relief. However, California law held a party over whose land overhanging branches extend may either cut them off or maintain an action for damages and abatement, as long as he or she can prove the branches constitute a nuisance.

The prospect that the Van Schaicks could eventually be faced with an order to abate the nuisance and could do so only by seeking a permit from the County did not transform the Dilbecks’ lawsuit into a SLAPP action. The Court ruled that the thrust of the Dilbecks’ complaint was the injury caused to their property by the encroaching tree, not the Van Schaicks’ decision to refrain from involvement in the permitting process. The permit, although obtainable only by petitioning a governmental entity, principally concerned and affected the remodeling of a private home by private individuals.

Case of the Day – Monday, June 8, 2015

THE BIKE RIDER “QUACKED” UP

Secretary of State Kerry in his more upright days …

Note to Mr. Quackenbush: Secretary of State John Kerry didn’t sue anyone when he fell off his bike. Neither did President Bush. But you, Mr. Quackenbush, are no John Kerry. Or George W. Bush. You sued the City of Buffalo because while you were riding your bike on one of Buffalo’s park trails when you hit a hole and fell off.

But then Buffalo tried to trample you. The City argued that New York’s recreational use statute immunized it from liability, but the Court ruled that where a government entity is involved — rather than a private landowner — it had to figure out whether the recreational user statute was intended by the legislature to induce the City to open the park, or to increase the use and enjoyment of the particular park by the public. The City maintained the trail was really kind of like a sidewalk, and the state’s sidewalk injury immunity statute applied.

No dice, the Court said. But Quackenbush kind of assumed the risk, the City argued. Not necessarily, the Court countered. Through it all, the City hadn’t shown it wasn’t responsible for creating the hole, or that it didn’t know it was there.

Now you’d think that hitting a hole on an unimproved trail on a mountain bike was kind of an unsurprising risk. But unsurprising or not, the appellate court thought the case was good enough to go to trial.

Held: Quackenbush could not be buffaloed by Buffalo. The appellate court concluded that the recreational use statute did not confer immunity upon the City. Although the statute generally provides immunity to landowners who permit others to use their property for certain recreational activities, the Court said, when the landowner is a government entity a different standard is applied. Then, the appropriate inquiry is the role of the landowner in relation to the public’s use of the property, and from there a determination is made whether it is appropriate to apply the limited liability provision of the statute.

Here, the Court concluded that the park was actively operated, supervised and maintained in such a manner that recreational use immunity would not create an additional inducement to keep the property open to the public for the recreational activities set out in the law. Additionally, state law immunizing the City for damages caused by bad sidewalks didn’t apply, inasmuch as the law was limited to streets, highways, bridges, culverts, sidewalks or crosswalks. Under the facts of this case, the Court held, the statute must be construed as a flat prohibition “of defect enactment pertaining to locations beyond the six specified.”

The City of Buffalo was not allowed to stampede over this plaintiff.

The Court rejected the City’s argument that an unimproved trail such as the one on which Quackenbush was injured was the functional equivalent of a sidewalk. The Court also ruled that Quackenbush had not assumed the risk of injury. Although the risk of striking a hole and falling is inherent in riding a bicycle on most outdoor surfaces, the Court said, there was an issue of fact whether the hole at issue in this case was open and obvious.

Finally, just so the City could go 0 for 4 here, the Court observed that the City was required to establish as a matter of law that it hadn’t created the dangerous condition and didn’t have actual or constructive notice of it. The City hadn’t done either.

Case of the Day – Tuesday, June 9, 2015

LOOKING FOR THE POT OF GOLD

One of the first rules among the personal injury lawyers is “find the deep pocket.” After all, what good’s a million dollar judgment against some guy whose earthly assets consist of a pickup truck and a chain saw?

Today’s victim, one of the Brothers brothers, was hurt while he worked on tree trimming. He was an employee of Tamarack Forestry Services, and he was “struck” by an aerial lift truck operated by another Tamarack employee. Of course, workers’ comp would have covered the accident, but our hurtin’ Bro wasn’t interested in chump change. He wanted a big payday for his injury. But where to get it?

That was a problem. Brother Brothers couldn’t sue Tamarack because workers comp prevents it: workers’ compensation is intended to stand in place of the old “sue and score” personal injury lawsuit against an employer. Poor Bro – all that pain and suffering and loss of consortium, and no one to sue.

You know those lawyers who advertise on daytime TV? The ones who say the insurance companies fear them, who thunder into the camera that “I’ll MAKE them pay?” Well, Brothers got himself one of those guys, a personal injury lawyer who was as creative as he was zealous. It turned out that Brothers’ employer, Tamarack, had been hired by New York State Electric and Gas Corp. to perform the tree trimming, and it seemed that NYSEG had plenty of money. Almost all those public utilities have money out the wazoo: just look at your light and gas bills if you doubt that. The utility made a perfect defendant.

Almost perfect. It turned out that NYSEG used some of its money to hire good lawyers, too, and they pointed out to the court that Tamarack was merely an independent contractor, a fact that normally would make NYSEG not responsible for the accident.

But New York law has an exception where the employer of an independent contractor had a contractual duty that it couldn’t delegate, such as where it had agreed to be liable for a contractor’s negligence. It turned out NYSEG was working on a DOT right-of-way, and it annually got a blanket license from the State allowing it to do so. The license had some boilerplate in it that NYSEG would comply with federal and state worker safety regs.

“Ah-ha!” cried Brothers’ lawyer, “a nondelegable duty!” “Ah-ha nothing!” cried the appellate court, holding that the non-exclusive license to trim trees created no duty in NYSEG to DOT. Besides, the court said, public policy (which is sort of what the court cites when it knows where it wants to get but doesn’t know how to get there) argues against such an unreasonable expansion of the “nondelegable duty” doctrine.

The New York Court of Appeals (which is the state’s highest court) affirmed, agreeing that to hold NYSEG liable would expose it to a “large class of plaintiffs.” That, of course, was the whole point Brothers’ lawyer was pursuing.

Brothers v. New York State Elec. and Gas Corp., 11 N.Y.3d 251 (2008). Mr. Brothers sued New York State Elec. & Gas to recover damages for injuries he sustained as an employee when he was struck by an aerial lift truck operated by a coworker. The public utility had contracted with Brothers’ employer, Tamarack Forestry Service, Inc., to furnish all necessary labor, supervision and equipment to clear trees and brush along electric lines. NSYEG routinely obtained annual blanket highway work permits from the New York State Department of Transportation for work to be performed along state highways. Under the permit, NYSEG was required to comply with various federal and state worker safety regulations. The trial court refused the grant NSYEG summary judgment dismissing Brothers’ action. The utility appealed.

Held: NYSEG could not be sued by Brothers. Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts. There are exceptions to that general rule in instances in which the employer’s duty is held to be nondelegable, in which case the employer is liable for an independent contractor’s negligence. Brothers said the exception applied here because the NYS DOT work permit issued to NYEG was a contract pursuant to which NYSEG voluntarily assumed a nondelegable duty to comply with various federal and state worker safety regulations.

The Court of Appeals disagreed. It held that while in certain instances a DOT permit may constitute a contract, the work permit here did not. The DOT did not contract with NYEG for tree trimming and removal, but instead NYSEG contracted with Tamarack to trim and remove trees for the benefit of NYSEG in maintaining its electric lines. The work permit is merely a license issued by the DOT to NYSEG conferring only the nonexclusive, revocable right to enter the DOT land to perform an act, and NYSEG assumed no duty to DOT under the work permit.

Furthermore, the Court said, Tamarack as an employer had the duty to provide its employees with a safe workplace. The Court saw no public policy reason to expand the exception for contractually assumed duties to include work permits such as the one issued by DOT to NYSEG, and decried the increase in the number of lawsuits such an expansion would create.

Case of the Day – Wednesday, June 10, 2015

A TREE JUMPED OUT

Watch out for the tree, Mr. Miller …

It was a dark and stormy nightwhen Mr. and Mrs. Miller drove through a mall parking lot, well after the lights were turned out. Mr. Miller missed a sharp turn in the drive, and hit an 8″ wide tree. He and his wife were injured, and while it went unreported, the tree probably didn’t fare that well, either.

Trees seldom sue, but the same can’t be said for the Millers. They went after the mall for negligence. To be sure, the tree showed evidence of having been hit before. The mall, however, argued that Mr. Miller was an idiot for driving too fast on a strange, unlit roadway in bad weather. It said he was contributorily negligence for the accident.

Back when this case was decided, we were driving a pretty sharp four-on-the-floor ’67 Cougar’67 and filling its tank for 29 cents a gallon. Ah, those were the days … unless you were a litigant suing for negligence. At the time,contributory negligencewas still the law of the land in most states. It was a Draconian doctrine: if the victim was negligent even a teeny bit, then he or she couldn’t recover a dime from the defendant, no matter how bad the defendant’s negligence by comparison. Since that time, contributor negligence has been replaced by “comparative negligence” most places. Comparative negligence is a percentage game: the jury finds that the defendant was, say, 70% negligent and the plaintiff was 30% negligent. The jury award of, say, $100,000 to the plaintiff would then be reduced by 30%, netting out 70 grand for our afflicted party.

Because contributory negligence was so harsh, courts often worked to find a way around its effect. In today’s case, the Court ruled that although Mr. Miller might have been contributorily negligent, that couldn’t keep the passenger, Mrs. Miller, from winning damages from the mall. The mall argued that Mr. Miller should share its liability to Mrs. Miller, but the state had an automobile guest statute that immunized a driver from liability to his or her passengers for simple negligence.

We miss that old Cougar … and 25¢ a gallon gas …

The mall should have marked the tree with reflectors or something, the Court said. Something to reflect on … like our old Cougar. Now that was a cherry ride.

Mr. Miller had entered the Shopping Center from West Main Street intending to drive across the lot to reach Canyon Lake Drive, the street on the south side of the Center. They had never travelled over this area before but had seen others do so. It was a misty, gloomy night with wind and gusty rain. Suddenly, a tree loomed in front of them. A collision ensued.

Miller and his wife sued Baken Park, and Baken Park counterclaimed against Miller for negligence. The evidence showed a driver would have had to swerve to miss the tree, and the conditions that night made it hard to see after the shopping center lights were turned off at 10 p.m. The tree, which had an 8” trunk, bore scars from prior vehicle collisions. The trial court considered the question of Baken Park’s negligence, contributory negligence by Miller and other issues it deemed appropriate. The jury found for defendant and plaintiffs appealed.

Held: The trial court was reversed. The Supreme Court held that the evidence was sufficient to authorize finding that Baken Park was negligent in allowing a tree without reflectors or other warning devices to remain in an area that not only served as a parking lot for customers of its lessees, but in the area used by them as a driveway. The Court said that a shopping center owner that maintained control of its parking lots and driveway for express purpose of serving customers of its lessees owed the business invitees of its lessees a duty to keep the premises in a reasonably safe condition. What’s more, the fact that Miller may have been negligent in driving through the dark lot was not imputable to his wife in the absence of some control or authority over operation of the car by her. His negligence thus would not prevent her from recovering against the shopping center for injuries sustained because of the concurring negligence of her husband and a third person.

The shopping center’s counterclaim against Mr. Miller had been dismissed by the trial court. The Supreme Court agreed that dismissal was proper under South Dakota’s guest statute, which immunizes a driver from liability to a passenger unless he was acting with recklessness or willful conduct. The Court held that the statute applied even to accidents on private property, and thus, Baken Park’s counterclaim against Miller had to be dismissed.

Case of the Day – Thursday, June 11, 2015

A SQUIRRELY CAUSATION THEORY

Oh, if it were only that easy …

In the world of negligence, it’s not enough that the person who screws up – referred to generally as the “actor” – is stupid. After all, the world’s chock-a-block with stupidity, and if being an imbecile were enough to make one liable, we’d all walk through life with our checkbooks perpetually open.

No, idiocy is not enough to create liability. Instead, the stupidity must be the “proximate cause” of the damage suffered by the plaintiff. For all of you proponents of chaos theory, you can consider it the obverse of the “Beijing Butterfly Effect.” You remember the illustration: the beat of a butterfly’s wings in Beijing today sets a miniscule air current in motion, which sets other air in motion, and so on nearly ad infinitum, until the air currents set into circulation cause a thunderstorm a week later in New York City. Small changes in input result in big changes in output. Just ask Edward Lorenz.

Lorenz was a scientist, not a lawyer. Had he been an attorney, he might have sued the butterfly because he got wet hailing a taxi at 52nd and 5th Avenue. But the law wouldn’t have been with him, because his damage – a soaking bespoke wool coat and trousers – was not proximately caused by the butterfly’s erratic flight around the Forbidden City seven days prior. It’s the lesson every first-year law student learns in Palsgraf v. Long Island Railroad, a now-legendary tort case from pre-Depression New York.

The facts were almost Rube Goldbergian. Mrs. Palsgraf – the countess of causation herself – had just arrived at the station to catch a commuter train. A passenger carrying a package, while hurrying to board a moving train, appeared to two Long Island Railroad employees to be falling. The employee standing on the passenger car tried to pull the passenger into the car while the other employee tried to push the rider into the car from behind. Their efforts to aid the passenger caused the unlucky fellow to drop the package he was holding. The box – about 15 inches long and wrapped in newspapers – struck the rails in between the cars.

The package contained fireworks, and it of course exploded when it hit the rails. The shock from the blast caused a panicked bystander to stumble into a pair of scales, which fell over, striking Helen Palsgraf.Palsgraf sued the Long Island Railroad (of course, because no one else in the chain of causation had any money), claiming her injury resulted from negligent acts of the Railroad’s employee. The trial court and the intermediate appeals court found for Palsgraf.

The Long Island Railroad appealed the judgment to the Court of Appeals, New York’s highest court. In a celebrated opinion by then-Chief Judge Benjamin Cardozo, the Court held that there was no way the guard could have known that the newspaper-wrapped parcel was dangerous, and that pushing the passenger would thereby cause an explosion. Without a reasonable perception that one’s actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability. Whether the Railroad employees had acted negligently to the passenger they manhandled was irrelevant for Palsgraf’s claim, because the only negligence that a person can sue for is a wrongful act that violates his or her own rights. “If the harm was not willful, [a plaintiff] must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.”

This is known as “foreseeability,” a concept that tends to limit liability to the consequences of an act that could reasonably be foreseen rather than to every single consequence that follows. Otherwise, liability could be unlimited in scope, as causes never truly cease having effects far removed in time and space. (This returns us to the wayward Beijing butterfly).Today’s case is a current illustration of what happens when a plaintiff’s lawyer slept through that particular session of tort law class.

The actors were a dumpster, a black squirrel, and a black hole. OK, not a black hole, more like a tennis ball-sized hole that provided the furry critter with access to the dumpster. Ms. Hansen dumped her garbage in the dumpster. The dumped bags startled the squirrel, which had perhaps gotten in the dumpster through the hole. The squirrel leaped from the dumpster in alarm, in turn startling Ms. Hansen, who fell and hurt herself.

So who was at fault? Ms. Hansen naturally blamed the condo association and Waste Management, for permitting a hole to remain in the lid (perhaps because both of the defendants had insurance). Being students of Palsgraf, the appellate court made short work of this one, asking how the defendants could reasonably have foreseen that failing to seal a tennis ball-sized hole in the dumpster lid could cause a condo owner to fall down. They could not, of course. Ms. Hansen was out of court.

Hansen has owned a condominium unit at Beal’s Cove since 1997. During her years there, Hansen had actually seen animals such as raccoons and squirrels on the property, which is close to some woods. She also had seen animals at Beal’s Cove near a different dumpster as well. However, this being America, someone had to be at fault, so she sued Getchell, trustee of the Beal’s Cove Village Condominium Trust, and Waste Management, Inc., the waste removal contractor.

Squirrels can be frightening creatures. Just look at the terror on this victim’s face.

Hansen claimed that the dumpster had a hole in the lid the size of a tennis ball, a squirrel-size hole which had been there for weeks and which provided squirrels an unfettered means of access. Her expert opined that the failure to repair the hole in the lid was a substantial contributing cause of her injuries, and she blamed defendants for not fixing it. The trial court granted summary judgment to the defendants because Hansen failed to establish that the defendants owed her a duty, and she failed to demonstrate a causal relationship between the claimed negligence and her resulting injury.

Held: The dismissal was upheld. The Court of Appeals said that whether the case was analyzed from the standpoint of the defendants’ duty to Hansen or from the standpoint of whether the breach of their duty proximately caused Hansen’s injury, she lost. The requisite foreseeability was absent.

Although there was evidence that the parties were aware that animals frequented the dumpster, the Court held that squirrels and other animals were a naturally occurring condition that the defendants didn’t create. There was no proof that squirrels or other animals that got in the dumpster made a habit of leaping out at unknowing depositors of trash. And even if ¬– given the pesky and mischievous nature of squirrels – the defendants could have foreseen that they would leap from the dumpster, it wasn’t foreseeable that the leap would lead to a condominium tenant becoming injured.

In other words, it was not reasonably foreseeable that, as a direct result of the unrepaired hole in the lid, a person accessing the dumpster would be startled, fall, and become injured. Neither Getchell nor Waste Management, Inc., had a duty to guard against such an unforeseeable harm.

Case of the Day – Friday, June 12, 2015

TREBLE DAMAGES FOR TRESPASS TO TREES

In an Ohio case we were working on the other day, we had occasion to be considering a “wrongful cutting” statute. Many states have them, statutes that require people who trespass on land and remove trees to pay multiple damages – most commonly three times the value of the timber but in some states double damages. Usually, the statute requires that the person trespassing and removing trees have some culpability more than mere negligence. The notion is that people who recklessly or intentionally cut down someone else’s trees need a strong incentive to abandon their nefarious ways, and awarding a multiple of actual damages is intended to encourage them to walk on the paths of righteousness.

But like any good statute (look at the federal RICO statute in the event you need some proof of this) the opportunity for misuse of the wrongful cutting law is rife. In today’s case, we start with your garden-variety adverse possession case. The plaintiff really had encroached on his neighbor’s property over a period of close to 50 years, although he had not gone to court to get record title. When the record owner of the land cut down some of the trees on land his title said still was his, the adverse possessor not only sued to quiet title – that is, get a judicial acknowledgement that he now owned the disputed strip of real estate – but even wanted treble damages for the timber his neighbor had cut.

The Massachusetts Land Court wisely declined the plaintiff’s invitation. It ruled that if your title says the land is yours, even if someone might be able to take it away from if the case goes to court, you hardly can be blamed for cutting timber on it. The Massachusetts statute required that you have “good reason to believe that the land on which the trespass was committed” wasn’t yours, in order to be on the hook for treble damages.

The adverse possessor already was getting title to land he had never bought, a judicial act some would call unjust enrichment. Giving him treble damages because the guy who owned the property according to the title cut down some of what the records said were his trees trees would really be piling on.

Mendes installed a barbeque pit on the disputed land … do you think the Bachants were ever invited to a pig roast?

Gleason sold the land in 1969 to the Bachants. In the 1970s, Mendes installed a garden and trellis on the disputed land. Ten years later, Mendes replaced the shed with a larger shed which further encroached, and built a stockade fence behind the shed which enclosed the area in dispute. He also added a barbeque pit. Again, he did this without permission and apparently even without knowledge that he was intruding.

Some 46 years or more after the first intrusion, the Bachants figured out that they held title to the disputed land, and in 2005, they tore down the fence, tore up the garden, and cut down and removed trees in the disputed area. Mendes sued, claiming the land by adverse possession and asking damages for trespass to trees. He demanded treble damages under Massachusetts G.L. c. 242, §7 for the destroyed timber.

The Bachants said that Mendes had failed to establish what portion of their property he adversely possessed, and had not proven the elements of dominion and control or open and notorious possession sufficient to establish his claim of adverse possession. The trial issued a temporary restraining order enjoining the Bachants from undertaking any construction or related activities on the disputed land. After trial, the court made findings.

Held: The land belonged to Mendes by adverse possession, but the Bachants were’t liable for cutting down the trees.

The Court ruled that Mendes’ possession had been actual, exclusive, and non-permissive, exercising dominion and control for a continuous period of at least 20 years. The Bachants argued that because the land was undeveloped woods, a stricter rule applied, and Mendes was required to have enclosed the area he possessed. The Court agreed that where a party claims adverse possession of woodlands, it must also demonstrate that the land at issue was either enclosed or reduced to cultivation and, in contrast, title by adverse possession cannot be shown to wild or woodland that has always been, and remains, open and unenclosed. But, the Court said, Mendes met the stricter standard imposed upon woodland parcels by enclosing substantial portion of the disputed area with a stockade fence and the cultivation of a vegetable garden within the same enclosure, coupled with the aforementioned additional activities.

As for the trespass to trees, the Court observed that under G.L. c. 242, §7, a person who without right to do so cuts down and removes another’s trees and timber is liable for treble damages. Mendes contended the Bachants unlawfully entered his land, and removed all of the trees and brush up to his shed. The Bachants argued that they were entitled to enter upon the land pursuant to their record title. The Court didn’t buy either argument, but it observed that the statute permitted treble damages only where the trespasser did not have “good reason to believe that the land on which the trespass was committed was his own.”

Here, the Court said, the Bachants’ record title indicated they owned the disputed area. Thus, even if damages were appropriate, treble damages wouldn’t apply. All they had done was to cut trees from land that remained theirs as a matter of law until the courts said otherwise.

Case of the Day – Monday, June 15, 2015

WE’RE FROM THE GOVERNMENT, HERE TO HELP OURSELVES

Marlborough should have heeded Marlboro’s advice – “better makin’s” … as in “we’d better be makins sure we own the land befores we go digging’ it up.”

Some time years ago, Marlborough (the City, not the cigarette) abandoned a seldom-used city street, even recording in the land record the misspelled sentiment that it “hearby abandon[ed] and discontinu[ed] any and all rights …” in the street.

Well, time passed and while much improved in the world, the competence of decision-by-committee did not. When the Marlborough powers that be decided a new water main had to be installed, they concluded they should go right down the right-of-way they had abandoned. “What, we abandoned it? Well,” the city fathers and mothers chuckled, “we take it back!”

And they did, too, going right up the center of the abandoned street, tearing up the place and downing a number of trees.America’s a relatively civilized place (albeit one with a lot of lawyers), so the landowners sued.

Obtaining a judgment that the City had trespassed was easy: after all, the land records themselves revealed the City had no rights in the street. But damages were tricky, especially because the landowners wanted treble damages. In Massachusetts, a trespasser to trees is liable for treble damages unless he or she had “good cause to believe” that he or she had a right to cut down the trees. The City argued it had relied on one of its attorney-employees, who opined that the street remained a public thoroughfare despite the unambiguous and misspelled language of the recordation and Massachusetts law. The City said it took “extensive steps” to determine its rights. The Court said “nonsense.”

It seemed the plans for the water main construction themselves carried the notation “Ownership to be determined,” and the trial judge warned the City at the temporary restraining order stage that its rights were pretty shaky. But the City dug and cut on. Sow the wind, reap the whirlwind.

An interesting damages note to the case: the City offered “expert” testimony from a real estate professional as to the loss of value of the property because of the trespass, calling this a “common sense” approach to valuation. The Court rejected the expert and the approach, because the loss calculation necessarily must include the value of the trees that had been cut down. Besides, the Court said, a real estate expert — no matter how good in his or her area of expertise — knew diddly-squat about trees.

The damage approach approved by the Court – the “cost of cure” method – took into account the cost of replacing the trees that had been curt, as well as removal of the larger stumps.

Held: The award of treble damages was upheld. The Court agreed that the City of Marlborough had abandoned the street, and it thus committed trespass when it destroyed trees while installing a water main along the abandoned street. A recorded order stated that the city “hearby abandons and discontinues any and all rights that it now has or ever had” in the lane. The Court held that the City did not have a good reason to believe that it owned land which it had previously abandoned, and thus the landowners abutting the street — who received the property following abandonment — were entitled to treble damages due to the city’s removal of trees while installing the water main.

Marlborough tried to make Sandy Posey’s 1967 country-pop song into the city anthem …

The evidence showed that the survey “was performed without the benefit of the determination of the status” of the lane, and that the landowners raised questions about the ownership of the land with city personnel immediately after receiving notice of blasting near lane, but the city continued its work nonetheless.

The amount of damages determined under the “cost of cure” method were not disputed on appeal. The damages included cost of replacement of trees, as well as removal of stumps of larger trees that had been cut. Marlborough complained that it was deprived of an opportunity to present its own “common sense and expert approach” when its expert, a real estate appraiser, was not allowed to testify because he was not an arborist and did not determine the value of the trees.

Marlborough offered no specific allegations of errors in procedure or in the jury instructions and merely concluded that “according to common sense” the loss of trees could not be worth more than the damages awarded for the land taking. The Court rejected this argument.

Case of the Day – Tuesday, June 16, 2015

TRUST US … WE KNOW WHAT WE’RE DOING

Anyone who hasn’t been living in a cave knows that sunny California has been just a little too sunny lately. The state and local governments have begged, pleaded and cajoled homeowners to save water. Now, some rather severe measures are being implemented.

Maybe so, but you’re not the only people around with a law degree. Some folks at the gas company have them, too.

Over the past weekend, the story broke that the California rich – like the rich everywhere – aren’t exactly like you and me. At least, not like me. Sure there’s a severe shortage. And sure people should cut back. But not rich people. “We pay significant property taxes based on where we live,” one uber-wealthy property owner complained to the Washington Post. “And, no, we’re not all equal when it comes to water.”

Ah, yes, we know what entitlement must feel like. It’s sort of like how the Andrewses, high-powered and sophisticated lawyers both, must have felt when they bought their house. You see, Mr. and Mrs. Andrews weren’t your typical blundering homebuyers. He was a tax attorney – the high priests of the legal profession – and she was an appellate specialist. So when they settled on a beautiful homestead in the Ohio countryside next to a hillside covered with pine trees, they figured that they understood all those ‘thences’, distances and bearings to PK nailsets, and ‘principal places of beginning’, you know, the stuff other lesser lawyers put in deeds. So how could they have missed the easement that the prior owner had granted to the gas company for two pretty big gas transmission lines buried on the place?

We’re sure they must have read it. But these legal beagles apparently never dreamed the easement meant what it said.

About four years after they moved in, the gas company came along and said the pine trees on the hill were encroaching on the easement and had to go. Being frugal as well as sharp, the Andrewses sued in local court, acting as their own attorneys. They argued the gas company was stuck with the trees because it had let them grow there in the first place, and anyway, it hardly needed to clear-cut a swath 80 feet wide (25 feet on either side of the two pipelines and 30 feet in the middle).

As it turned out, Columbia Gas had a few lawyers, too, and these guys knew easements like Mr. Andrews knew tax. Maybe even better. The gas companyremoved the case to federal court, where after a trial, the Andrewses had their heads handed to them. The Court of Appeals affirmed the defeat.

The court held that Columbia Gas hadn’t acquiesced to the trees, because they weren’t any there when the pipeline was built (but were planted by a later homeowner). The fact that the gas company hadn’t cut a swath of trees from the easement in 55 years didn’t matter, nor did it matter that the gas company was cutting such a wide right-of-way on neighboring easements. The court gave credence to the Columbia Gas and state utilities commission witnesses, who carried the day by carefully explaining all of the safety, economic and reasons for the gas company to want the trees removed.

The Court ruled that absent evidence to the contrary, a judge should presume that the parties contemplated that normal development would result in some changes in the use of the easement, even if it is unlikely that the parties anticipated specific developmental changes. New technology permitting aerial inspection, new federal regulations on pipeline safety and security, and new techniques of internal pipeline inspection, were all such “developmental changes,” arguing for the gas company to take a heightened interest in keeping its easement clear.

Andrews v. Columbia Gas Transmission Corporation, 544 F.3d 618 (6th Cir., 2008). In 1947, Ruby W. Davies owned the piece of land in Licking County, Ohio, where the Andrews family now lives. She granted The Ohio Fuel Gas Company an easement to build and maintain a pipeline and to “lay, maintain, operate, repair, replace and remove other lines of pipe at any points on said premises upon the payment of like consideration” and the right of “ingress and egress to and from the same” over and across the property. Ohio Fuel agreed to “pay any damages which may arise to crops and fences from the laying, maintaining, operating and final removal of said pipe line.” The agreement did not specify the width of the easement.

Pursuant to the agreement, Ohio Fuel installed two large high-pressure underground natural gas transmission pipelines through the property. The first, Line K-170, is 16 inches wide and was installed in 1947. The second, Line K-205, is 24 inches wide and was installed in 1957. The two pipelines run parallel to each other about 30 feet apart. Columbia Gas succeeded to Ohio Fuel’s interest in the right of way and still operates and maintains the pipelines. The property changed hands several times over the past 50 years. In the late 1960s, the owner built a house on it and planted pine trees on the hillside behind the house for aesthetics and erosion control. The owner was unaware that he had planted the trees within 25 feet of Line K-170.

In March 2000, the Andrews bought the property with notice of the 1947 right of way agreement. By then, the pine trees had matured. The Andrews’ decision to purchase the property was motivated in large part by the rural setting and the hillside landscaping.

Columbia Gas made no efforts to clear a right of way around the pipelines until 2004, when a work crew told the Andrews that the location of the pipeline required them to remove the stand of pine trees. Columbia Gas claimed the right to remove the trees and to maintain a right of way totaling approximately 80 feet, 25 feet on each side of the two pipelines and the 30 feet between the two pipelines. The Andrews sued Columbia Gas, seeking an injunction and asking for damages if the trees were cut. After trial, the court entered judgment in favor of Columbia Gas, relying on the testimony of Timothy Seibert, a long-time Columbia Gas employee responsible for overseeing the inspection and maintenance of the pipelines running through Andrews’ property, and Paul Hollinger, an investigator for the Public Utilities Commission of Ohio, the state agency responsible for overseeing natural gas transmission lines. Based on their testimony, the Court concluded that a 50-foot right of way for each pipeline was “necessary and convenient and consistent with the language of the 1947 Davies easement.” The court declined to apply the doctrines of laches, estoppel, or waiver, noting that those doctrines do not apply to expressly granted easements under Ohio law. Finally, the Andrews were not entitled to compensation for removal of the trees because the right of way agreement only provided recovery for damage to crops and fences. The Andrews appealed.

Held: Columbia Gas was entitled to the 80’ wide right-of-way, and the Andrews were not entitled to damages for the lost trees. Under Ohio law, an easement is an interest in the land of another, created by prescription or express or implied grant, that entitles the owner of the easement to a limited use of the land in which the interest exists. The owner of the land subject to an easement has the right to use the land in any manner not inconsistent with the easement, but has no right to interfere with or obstruct the reasonable and proper use of the easement. The owner of an easement has the right to remove objects within it that unreasonably interfere with or obstruct its reasonable and proper use.

Where the terms of an expressly granted easement are ambiguous, the Court held, a judge must determine its scope from the language of the grant, the circumstances surrounding the transaction, and what is reasonably necessary and convenient to serve the purposes for which the easement was granted. Absent contrary evidence, a judge should presume that the parties contemplated that normal development would result in some changes in the use of the easement, even if it is unlikely that the parties anticipated specific developmental changes. Acquiescence for a long time in a certain construction of a grant of an easement, estops the assertion of a different construction.

The Andrews argued that Columbia Gas never cleared any area within its claimed right of way, and never objected when the prior owner planted the pine trees in the late 1960s. But lack of action prior to this time did not stop the gas company from asserting its rights now. If Columbia Gas had consistently cleared only 10 feet on each side of its pipelines, the Court said, the Andrews’ argument would have more force. But the fact that the company did nothing is not fatal to its claim. Besides, the Court said, Columbia Gas did not acquiesce to the trees. No trees were growing there in 1947, making it reasonable for the trial court to conclude that the conduct of Columbia Gas after the trees were planted did not evidence the original intent of the parties.

The Andrews also argued that Columbia Gas acquiesced by allowing trees near its pipelines on other properties. But the original intent of the parties is the primary inquiry, and only the conduct of the parties regarding the particular property at issue is relevant. The fact that the gas company may or may not have enforced its easement to its fullest width elsewhere has absolutely no bearing at all on whether it may enforce its easement to its fullest width on the Andrews property.

Capt. Picard may well have landed at the plaintiff’s table in this case …

Relying on testimony by expert witnesses, the lower court ultimately concluded that a 50-foot easement was reasonably necessary and convenient for the inspection, operation, and maintenance of each of the pipelines. The factual findings upon which he based that conclusion were not clearly erroneous. Although each easement case is factually unique, almost every court to construe an easement with similar language as the one at issue here has concluded that a 25-foot right of way on both sides of the pipeline was reasonably necessary and convenient. And it is beside the point to argue that federal regulations do not require natural gas companies to clear rights of way around their pipelines. Assuming that to be true, the regulations do not prohibit gas companies from clearing rights of way. Although federal law may be helpful in construing certain ambiguous easements, the rights granted in an easement ultimately flow from a private agreement. The difficulties Columbia Gas might face in conducting pipeline inspections was a primary ground for the lower court’s conclusion that a 50-foot right of way was reasonably necessary and convenient for each of the pipelines on the Andrews property.

Columbia Gas offered evidence that the trees hindered the company’s ability to conduct both aerial and close interval pipeline inspections. According to an expert witness, the presence of trees within the right of way interfered with aerial inspections. Additionally, trees within 25 feet of the center of a pipeline could hinder the company’s ability to conduct close interval surveys and to excavate the pipeline in the event of an anomalous inspection or an emergency such as a leak or rupture.

The Andrews argued that Columbia Gas had safely maintained its pipelines for decades without removing the trees and that if an emergency ever arises, it can remove the trees quickly enough at that time. The trial court recognized this as well, but also reasoned that there were some circumstances in which the additional time to remove the trees could impose a substantial hardship on customers who would be without natural gas service during the excavation and the delay to remove the trees could unnecessarily jeopardize public safety. There was ample support in the record for the conclusion that a cleared right of way was reasonably necessary to ensure a safe, timely, and efficient excavation. The trial court also considered evidence that a 50-foot right of way is standard in the gas pipeline industry.

Finally, the Andrews challenged the trial court’s determination that they are not entitled to damages for removal of the trees. Because the trees were inconsistent with the easement rights of Columbia Gas, the company was authorized to remove them.

Case of the Day – Wednesday, June 17, 2015

LET’S BE CAREFUL OUT THERE

Summertime starts in a few short days. Maybe we’d better say a few long days, in honor of the 15 hours 17 minutes of sunlight we’re enjoying right now. At 38 minutes past noon next Sunday, Father’s Day, the earth will be tipped its maximum 23˚ 44’ south, and people in Australia will be falling off the planet.

It may still be astronomical spring, but it’s doggone hot. We’re looking forward to the old swimming hole. This is the time of summer when dumb things can happen. We must make extra effort to be caerfull careful. This might be a good time to consider due care, that is, our duty of care to others.

In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff was proximately caused by the failure.

That’s what “fisheye” is all about: Do you really want to be eating food that’s staring back at you?

The duty of care is a moving target, depending to a large extent on the relationship of a defendant to the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).

In today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.

The lake’s owner argued that the young man was merely alicensee, not aninvitee. The difference was crucial, because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million.

The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that evidence convinced the Court of Appeals that the young man wasn’t just someone who was using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.

Not all shallow water is so well labeled.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App.Ind., 2007). Twenty-six year old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.

Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.

Be careful when diving into unfamiliar water.

Held: Justin was an invitee. Indiana law holds that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on the land by virtue of the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor with regard to whether a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable man would put upon the owner’s words and actions, given all of the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the water quality of lake in order to facilitate public recreational use and ensure continued public access.

What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility, provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation and environmental purposes. It is not enough, to hold land open to the public, that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come. When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees.

Case of the Day – Thursday, June 18, 2015

ZOOM, ZOOM, DING

An alert reader sent us a link to asports car forum, in which the proud owner of a Mazda RX-8 bemoaned the fact that his car had been hit by a limb that fell from his landlord’s tree. The owner wondered whether his landlord was liable for the deductable on his insurance.

Collisions with trees can be harrowing, whether in a car or even just riding a bicycle.

Good question! Because the RX-8 and the tree both are South Carolina, we looked first at Staples v. Duell. In that case, Ms. Staples was driving down a rural road when she came upon one of Mr. Duell’s trees, which had fallen across the road. She came upon it rather suddenly, because she collided with it. She sued Mr. Duell, who was a landowner of some magnitude (about two miles worth of real estate along each side of the road).

Mr. Duell had an employee who was assigned the task of checking the security of the estate, including looking for dead trees, on a daily basis. Somehow, he must have missed this 100-foot pine’s condition. Ms. Staples sued Mr. Duell for negligence.

The Court found for Mr. Duell. It held that in South Carolina, rural landowners have no duty to others to inspect and improve their land. The fact that Mr. Duell voluntarily did so by sending an employee around didn’t create a duty where none existed. And that makes sense: if voluntarily performing a good deed created a legal duty to perform such deeds, no one would ever perform a good deed, that is, to go beyond the minimum the law requires for fear they would become liable for a good deed.

This doesn’t exactly answer our driver’s lament. After all, the landlord may be an urban landowner, and the Court suggests that an urban owner’s duty is different. Also, as a landlord, the tree owner’s duty may be greater than that of a landowner whose property happens to front on the highway. We’ll consider that tomorrow.

Meanwhile, good news from the Mazda front … our hapless sports car owner reported that his landlord’s insurance will cover his deductable.

The tree fell about sixty feet from the roadway and was located on Mr. Duell’s land, a plantation that stretched for about two mile along both sides of the road. In this area, only one residence – a cabin – stood. About 13,500 vehicles a day passed by Duell’s two-mile stretch of land on Highway 61. Duell owned Middleton Place National Historic Landmark, a tourist attraction which received about 100,000 admission-paying visitors a year. The only public entrance or exit to Middleton Place is on Highway 61. Duell maintained a 250-foot buffer zone of trees on both sides of the highway to protect the scenic beauty of the road. Duell’s employee, James Woddle, took care of the woodlands at Middleton Place. Woddle’s job duties included twice a day driving around the perimeter of Middleton Place to inspect the premises. During his inspections, he looked for trespassers, abandoned vehicles, and dead trees.

Staples sued Duell for negligence in permitting the tree to become a hazard. The trial court directed a verdict for Duell, holding that because the land from which the tree fell was rural, he had no common-law duty to discover and prevent the dangerous condition caused by the dead pine tree. Even if Duell had a policy of searching for dead trees along the roadway, his voluntary practice did not create a duty. Duell could have abandoned it at any time and it did not increase the risk. Staples appealed.

Held: The Court found for Mr. Duell. To prevail on her theory of negligence, Ms. Staples had to establish that (1) Duell owed her a duty of care, (2) that by some act or omission, he had breached that duty, and (3) that as proximate result of his breach, she had been injured. The Court ruled that as an owner of rural property adjacent to a highway, Duell did not owe duty of care to motorists on highway to inspect and improve his land. Rural landowners have different duties and responsibilities from city dwellers, the Court said, based on the different level of risk posed by defects on rural land and the burden of maintaining larger tracts of real estate. Thus, unlike urban landowners, rural landowners do not have a duty to inspect and improve land.

Mr. Duell’s policy of searching for dead trees on his property was good stewardship, but it did not result in his assuming a duty to motorists for injuries resulting from trees falling onto the road. His policy of examining his trees didn’t increase risk of harm to motorists. The people driving by had no prior knowledge of the policy and thus did not detrimentally rely on it. This of course makes one wonder – if people did rely on Mr. Duell’s perspicacity and gumption, would the Court have turned his voluntary good deed into a duty? A scary thought …

Case of the Day – Friday, June 19, 2015

MORE ON MAZDAS AND BRANCHES

They may just be the best doughnuts on earth …

Yesterday, we took up the case of a chagrinned Mazda RX-8 owner. Why was he unhappy? Was it the 18 mpg he got from the rotary engine? Was it the high-priced premium gas he had to burn? Was it the squirrely techniques he had to master for handing the temperamental little Regenesis engine? Of course not! RX-8 owners love their cars. Our guy was unhappy because a limb from his landlord’s tree had fallen on his pride and joy. He wondered whether he could sue.

The answer is, of course, sure he can sue. But, you ask, can he win? That’s a different question altogether. We tried to take up a collection to finance his lawsuit, but we got distracted once we had enough for a box of Lerch’s doughnuts. In the alternative, all we can do is consider his question. And we have an answer — a resounding, 9,500 r.p.m.“maybe!”

The car was damaged, but Ms. Israel’s sandwich was a total loss. A tragedy that easily rivals the plagues visited on Pharaoh’s Egypt …

Yesterday, we looked at South Carolina’s duty of care for rural landowners. In today’s case, we see that the duty of care that urban or residential landowners owe to invitees and passersby is much stricter. Ms. Israel was sitting in her car one breezy spring day enjoying what was arguably the 21st best barbeque in the Southwhen a large branch from a neighboring property fell on her car, destroying it and her sandwich. She was troubled about the damage to her car; she was devastated by loss of the uneaten sandwich. So, naturally, this being the United States of America, she sued everyone.

The trial court awarded her thousands of sandwiches worth of damages, but the Court of Appeals reversed. As the owner of property in a residential or an urban area, the neighbor had duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin. The evidence showed that the decayed tree could be seen from the ground. So the tree’s owner was toast.

But the Court wasn’t willing to serve any barbeque up on the toast. The owner of the pulled pork stand had a duty to his customers to exercise reasonable or ordinary care, measured by his ability to anticipate danger. In the absence of evidence that the restaurant owner either saw or could have seen the decayed limb from his property, he wasn’t liable.

The scene of the mishap – Orangeburg – is in the center of South Carolina “mustard-based” barbeque sauce country, a fact probably having nothing to do with the falling tree branch or the subsequent lawsuit …

So away from the succulent pork (covered in a mustard-based sauce, no doubt) and back to the gutsy little RX-8. The landlord certainly has a duty to his tenants, who are, after all, invitees. And we suppose the house is in a residential area. But was it clear from the ground that the limb was about to let go? If so, the landlord had a duty to fix it. If it was just one of those things, well … that’s what they call an‘act of God.’

Israel v. Carolina Bar-B-Que, Inc., 292 S.C. 282, 356 S.E.2d 123 (Ct.App. S.C., 1987). Charlotte Israel sued for injuries she received, when a large limb from a tree on property owned by Andrew Berry, Trustee, fell over and onto the car in which she was seated and which was parked in the parking area of the Carolina Bar-B-Que. She sued both the owner of the real estate on which the tree was located and the owner of the land onto which the tree fell.

The next-door lot (the “Berry lot”) was 173 by 135 feet, on which there were a number of trees. Some large water oaks, planted about 1911, were located about 25 to 30 feet from the BBQ property line. These trees had received a radical pruning in 1971. Pictures showed visible signs of decay and rot in one of these trees. Some smaller oaks, planted about 1955, were located some 4 to 10 feet from the property line, between the large water oaks and the BBQ parking lot. These trees were bushy with some limbs overhanging the barbeque operator’s property, and having trunks of no more than 12 inches in diameter. A picture showed these trees in their relation to the barbeque parking lot. The Carolina Bar-B-Que owner occasionally pruned branches off those trees to the extent they were overhanging his lot. The limb that hit the car came from one of the large water oaks, and had a diameter of between 12 and 25 inches. The limb was so large that the Israel car was, in effect, totally destroyed.

The Carolina Bar-B-Que’s manager said that no limbs from the large tree were overhanging his property. He noticed no decayed limbs on these trees. He surmised that the high winds that day “pushed [the limb] out” onto the Barbeque property. When he later removed the trees on this lot, he discovered only one tree in “bad shape” and it was not the tree from which the limb fell. A police officer who investigated the accident said that limb was about 25 feet long, and that he saw a tree from which the limb apparently came. He admitted that he couldn’t testify that there was a decayed portion of the limb visible from the Barbeque lot. However, the tree could have been inspected from the Berry property.

Ms. Israel sued the trust owning the Berry lot and Carolina Bar-B-Que. The jury awarded an $80,000 verdict (or about 27,119 really good BBQ sandwiches) against both the Barbeque and Mr. Berry. They both appealed.

Held: The Court reversed the judgment against the Barbeque, but affirmed it against the Berry trust. The Court admitted that at common law, Berry would not have been liable for falling tree or limb. However, the realities of modern life had modified the rule. A landowner in residential or urban area has duty to others outside of his land to exercise reasonable care to prevent unreasonable risk of harm arising from defective or unsound trees on his premises, including trees of purely natural origin. Here, the Court said, the evidence supported finding that Berry, the owner of the land from which the tree limb fell, was negligent. The tree was partially decayed, the limb’s dangerous condition and the likelihood of its falling could have been observed by reasonable inspection, and a reasonable person should have been aware of the danger which the decayed limb posed to persons on the adjoining property.

The Barbeque owed to a duty of care to the invitees or business visitors, one of exercising reasonable or ordinary care for the invitee’s safety. Reasonable care required by a business with respect to its invitees is measured by ability of reasonably prudent man to anticipate danger under conditions known or reasonably anticipated to exist. In the absence of evidence that the BBQ owner either saw or could have seen a dangerous condition from the Barbeque property with regard to a tree limb on the adjacent property, Carolina Barbeque was not liable to Ms. Israel.

Traditionally, theMassachusetts Rule– which could be summarized as “I don’t owe you nuthin’ – held that a landowner had no liability to his neighbor for harm done by overhanging branches and encroaching root systems. If the neighbor didn’t like the mess, he or she could trim away the offending branches or roots up to the property line. The courts simply didn’t want to hear about it.

However, courts had traditionally held an urban landowner to a higher standard of care when the people being protected were passing motorists on a public highway. In those cases, an urban landowner was obligated to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In today’s case, Lois Lockhart had a decaying tree on her property. Neighbor Carl Mahurin complained about it, primarily because one of the branches was overhanging his property. But Lois did nothing. Neither did Carl – unless belly-aching counts as putting forth an effort.

Finally, the branch broke off and hit Carl, who was standing beneath it. You knew that had to happen, or else why would we be telling you this story? Being injured –and a little piqued that Lois had ignored his entreaties for so long – Carl sued. (You knew that would happen, too.)

Lois tried to get the case thrown out of trial court. She pointed out that Carl had nothin’ coming from her. The traditional rule – read “Massachusetts Rule” here ­– dictated that she had no duty to protect Carl from the natural condition of her tree.

But as the great bard once wrote, “I do perceive here a divided duty.” Othello, Act I, Scene 3. And so did the trial court. It was troubled that Lockhart’s duty to strangers passing by in their Hudsons and Desotos was greater than to her neighbor. That seem divided, and irrationally so.

Lois said, “Heaven is my judge, not I for love and duty, But seeming so, for my peculiar end.” Othello, Act I, Scene 1. The trial court said that might be so, but it nevertheless sent the case to the Court of Appeals for the appellate court’s opinion as to her duty.

William Shakespeare foresaw the problems with the traditional liability rule urged by Ms. Lockhart hundreds of years ago. “Wondrous strange!” indeed.

The appellate panel said, “O day and night, but this is wondrous strange!”Hamlet, Act 1, Scene 5.It could see no reason for the disparate treatment, either. Certainly, just as Lockhart owed a duty to Mordred and Mildred Motorist, she must owe the same duty to her neighbor, Carl. However, the Court of Appeals did allow that Mr. Mahurin could have entered onto Ms. Lockhart’s place and cut the tree down itself. So he might be contributorily negligent. Likewise, could he have been a knucklehead for standing under a tree he had complained was dangerous?

To Lockhart, the Court said “There are more things in heaven and earth, Lois, than are dreamt of in your philosophy.” Hamlet, Act 1, Scene 5. Such as a single duty owed by a landowner to both travelers passing on the road and her next-door neighbor. It sent the case back to trial.

Mahurin v. Lockhart, 71 Ill.App.3d 691, 390 N.E.2d 523 (Ill.App. 5 Dist. 1979).Plaintiff Carl Mahurin brought this action to recover damages for personal injuries he suffered when a dead branch extending over his property fell from a tree belonging to defendant Lois Lockhart, an adjoining landowner, and struck him. In his complaint, Mahurin alleged that Lockhart failed to prune the tree or take other necessary precautions after he warned her of the condition of the tree and the dangers it posed.

Lockhart moved to dismiss the complaint, arguing that a landowner is not liable for physical harm to others outside of her land caused by a natural condition. The trial court denied the motion to dismiss, certified that the question of law raised in Lockhart’s motion presented substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

Held: The Court held that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.

The narrow issue before the court was to determine the extent, if any, of the duty that a landowner in a residential area owes to persons outside of his premises to remedy some defective or unsound condition of a tree upon his land when the tree and its condition were of a purely natural origin. Mahurin urged the Court to adopt the traditional rule set forth in section 363 of the Restatement (Second) of Torts. This section provided that neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land. However, if the landowner was in an urban area, he was subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

The traditional rule applied even though the landowner is aware of the dangerous natural condition and the expense necessary to remedy the condition is slight.

The Court noted that the traditional rule of non-liability developed at a time when land was mostly unsettled and uncultivated. The landowner – unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes – was therefore shielded from liability out of necessity.

But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl …

The Court disagreed that the duty an urban landowner owed to a neighbor should be less than owed to people passing in cars and trucks. It thus ruled that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.”

Therefore, Lockhart’s duty to Mahurin should “be defined using the ordinary rules of negligence. It is therefore appropriate for the trier of fact to consider … such factors as “the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented” in resolving the issue of liability.

The Court noted Lockhart’s argument that Mahurin was contributorily negligent because he stood under a tree that he, by his own admission, knew was dying and dangerous. The Court noted that the Restatement provided that a landowner is privileged to enter upon a neighbor’s land to abate a condition thereon which constitutes a private nuisance. “While this privilege alone does not establish the contributory negligence of plaintiff, it could be considered by the jury in resolving this issue.”

The Court remanded the case for trial, using the standards it had adopted.

Case of the Day – Tuesday, June 23, 2015

AND DON’T FORGET THE LITTLE WOMAN …

Small business owners sometimes skimp on the legal niceties. After all, they reason, paying out $500 to some lawyer for a bunch of forms and avinyl corporate bookdoesn’t really “grow the business,” as the buzz phrase puts it. And in these rough times, who wants to squander money on a lawyer?

Oops! Sometimes, misteaks happen.

That’s pretty false economy, it turns out. In today’s case, a mom-and-pop timber harvesting business was hired to take down trees on one owner’s land, and —predictably enough — the chain saws wandered onto Mr. Follender’s land, to the tune of 439 commercial-quality trees cut down and removed without permission. Follender lost trees worth $54,500. After trebling and some discounts, he ended up with a $120,000 judgment against Bert Maxim, the defendant.

Unfortunately, the timber harvester had involved his wife in the business, and she did enough of the paperwork in the business that she had signed the contract for the timber operation that had gone awry. Oh, if they had only incorporated, formed an LLC, something! And if only Mrs. Maxim hadn’t signed that agreement! But hubby was out cutting down trees and they were in a hurry …

The Court ruled that her involvement in the unincorporated business was enough to maker her liable for the $120,000 judgment as well.

Sure, LegalZippy.com or LawformsRUs can sell you some boilerplate-laden forms over the Internet that’ll purportedly set you right up. But how a small business can best be structured to protect its principals from liability is a matter that varies from state to state. The legal niceties of the business organization — not just in the formation of the company but in day-to-day management — is best addressed by your local attorney or a specialist to whom he or she might refer you.

But get the advice now. Usually, by the time you realize you should have spent the money on the legalities of business formation and protection, it’s too late.

Follender v. Maxim, 845 N.Y.S.2d 484, 44 A.D.3d 1227, 2007 WL 3101953 (N.Y.A.D., Oct. 25, 2007). Follender sued Berton Maxim and his wife for “wrongful and/or cutting down/taking of timber” from the purchased property. The Maxims, doing business as Prime Hardwood, had entered into a contract with Follender’s adjacent landowners, Valentine Riedman and Christl Riedman, to log their property. In the process, they inadvertently trespassed on Follender’s property and removed trees. Follender alleged negligence and conversion, with a request for treble damages, against the Riedmans and Maxim. They named his wife as a defendant, too, calling her “Jane Doe Maxim.”

Follender dropped the Riedmans from the suit, but the Maxims failed to answer or defend. After learning that Maxim’s wife’s name was Eileen Tine, Follender filed an amended verified complaint against them both individually and doing business as Prime Hardwood.

Again, they failed to answer or appear. After Follender got a default judgment against them, the court ordered an inquest. When the Maxims again failed to appear, Follender offered extensive proof which included, among other things, the contract between the Riedmans and Tine (signing on behalf of Prime Hardwood), an affidavit from Valentine Riedman which explained that when Maxim came to log his property, he was given a survey map which showed the Riedmans’ boundary line. Valentine Riedman was unaware that Maxim would remove timber outside of those boundaries. Michael Greason, a professional forester, testified that 439 commercial species trees were cut from Follender’s property, 386 of which had a value of $54,506.68. The Court trebled the damages, and assessed damages of $120,000 against Maxim but never mentioned his wife, Tine. Follender appealed, contending that the failure to include Tine in the order awarding damages was a mistake.

Held: The judgment was modified, and the order of the trial court awarding treble damages of $120,000 against logger Maxim for negligence and conversion was rewritten to include the logger’s wife in the award of damages. She had signed the contract between Maxim’s business and the landowner’s adjoining property owners, in connection with which the logger had trespassed onto Follender’s property and from which he unlawfully removed trees.

Generally, appellate courts may correct any mistake, defect, or irregularity in a judgment, provided that the correction does not affect a substantial right of a party.

This is one of those cases that makes our point. The Wisemans had an access easement along the boundary of their property and their neighbor, Mr. Greenfield. They sold some land to a developer, and part of the deal was that the developer would install a driveway. The developer hired a company to do it. After the job was done — and the driveway was indeed properly within the access easement — Mr. Greenfield said that some branches had been cut from a pine tree of his that stood along the drive. This being America, he sued his new neighbors.

Mr. Greenfield had no witness that his neighbor — or anyone else, for that matter — had cut off the branches. He had no evidence that the tree’s value had been lessened (except for his own claim that his property was worth $25,000 less, pretty steep for a couple of pine boughs). But the lack of evidence didn’t bother him that much.

It did bother the Court, however. First, the Court noted, the fact that the branches were missing didn’t mean the Wisemans had cut them. Second, the subcontractor for the developer wasn’t the Wiseman’s agent, even if he had cut the branches (and Greenfield had no evidence he had done so0. Third, there was no unbiased evidence as to the extent of damage, and the Court wasn’t going to sit still to hear Mr. Greenfield speculate as to how much he ought to get in damages.

Most important for us students of the Massachusetts and Hawaii rules, the Court said even if the Wisemans had trimmed the branches back to the limits of the easement, they had the right to do so, and any damages Greenfield could recover for were only for any extra branch that might have been taken beyond the property line.

This action was truly a waste of everyone’s time … Ready for a hand of Old Maid?

Sometimes, trimming trees next to driveways is a darn good idea …

Greenfield v. Wiseman, Not Reported in A.2d, 2008 WL 344606 (Conn.Super., Jan. 18, 2008). David Greenfield owned property next to that belonging to Carter and Eileen Wiseman. The Wisemans had access to a portion of their land only by means of a 20-foot wide corridor running across the Greenfield land. When the Wisemans sold some of their land to a development company, part of the deal was that the developer would build a gravel driveway along the access corridor. The company hired a subcontractor to do so.

Shortly after the driveway was built, Greenfield sued, claiming breach of covenants and trespass. He abandoned all claims except the trespass claim, arguing that the development company and the Wisemans trespassed while the driveway was being built, by cutting some limbs off a large pine tree on the corner of his land. No one witnessed the actual cutting of the trees, nor was any testimony presented from those who actually cut the limbs. The uncontradicted testimony was that neither of Wisemans personally cut any of the branches, or witnessed the actions of those responsible. Nevertheless, Greenfield claimed damages under a Connecticut treble damage statute.

Held: Greenfield’s case was thrown out. The Court observed that the essential elements which must be proven to sustain an action for trespass were ownership or possession of an interest in land by the plaintiff, an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest, done intentionally, and causing direct injury. Here, the Court said, the evidence failed to show any intentional intrusion or invasion of Greenfield’s possessory interest by either of the Wisemans. The treble damage statute does not provide a new or independent cause of action. Instead, it merely provides a measure of damages applicable in situations in which compensatory damages, in the absence of the statute, would be recoverable.

This was just a stupid case to bring in the first place … That’s why Greenfield lost. Because he was a knucklehead, and his lawyer wasn’t any better …

But Greenfield said that the Wisemans were liable because the subcontractor was their agent. In order to demonstrate the existence of an agency relationship between the defendants and the unknown individual or individuals who cut the limbs from the plaintiff’s pine tree, the Court held, the evidence must establish a manifest action by the principal that the agent will act for him, an acceptance by the agent of the undertaking, and an understanding between the parties that the principal will be in control of the undertaking. Here, neither of the Wisemans controlled the means by which the driveway would be installed, and both were unaware of the name of the person or entity engaged by the development company to perform the actual installation work. There was no agency relationship.

Finally, Greenfield produced no evidence concerning the value of the cut branches, and all of the photographs revealed a healthy pine tree which did not have to be cut down as a result of the branches being removed. Besides, the Court said, the Wisemans or anyone acting as their agent would be fully justified in cutting any portion of the branches which extended beyond the stake onto their property.

Case of the Day – Thursday, June 25, 2015

THE BOUNDARY TREES OF WALTER PRIDDY

You know how free association goes. This being summer and all, we were groovin’ (a 60s term, kiddies) on an old Lovin’ Spoonful hit yesterday, “Summer in the City.”

Although operating without a lot of the mental stimulants that were so freely available during the Summer of Love, we nonetheless started pondering the line “Back of my neck gettin’ dirty and gritty.” “Gritty” rhymes with “pretty,” which rhymes with “Priddy.” And there you have it. Thinking a lot about tree law (as we do), we recalled Walter Priddy.

“Oh, yeah,” you say, “that guy James Thurber wrote about. The secret life and all … The Ben Stiller movie …” No, not ‘Mitty.’ We’re talking ‘Walter Priddy.’ No “secret life” that we know of, but something just as fascinating – a line of boundary trees, an unhappy neighbor, a homeowner’s association, counterclaims. Our meat and potatoes, you know.

It ought to be rather obvious — a court can only decide issues that have been placed before it, and can only order remedies which address the causes of action that it has found to have merit.Courts sometimes lose their way, though, as did the California trial court in today’s case. The Boussiacoses (pronounced “them”) complained that the Priddys’ line of shade trees along their common boundary were a nuisance, messed up the Boussiacoses’ deck, and violated the homeowner’s associations’ rules. The Priddys argued that the trees did no such things, and anyway, the Boussiacoses’ deck had been built without homeowner’s association permission, constituted a nuisance itself, and violated the rules.

The trial court decided that neither side was right. Now your average observer would conclude that the decision meant that the Boussiacoses kept their deck and the Priddys kept their trees. But the trial court decided that the Boussiacoses must have reached an oral “understanding” (and we don’t know how an “understanding” surrounded by quotation marks differs one that isn’t in quotes) with the owners before the Priddys that the trees would be kept trimmed. Now, mind you, the Boussiacoses hadn’t argued that there was such an “understanding,” or that if there was it should be treated like some kind of enforceable agreement. But the trial judge – quite proud of his “solution” – decided that the phantom “understanding” should bind the Priddys anyway. He crafted a decision that let the Boussiacoses keep their deck provided the Priddys got to keep their trees, but the trees had to be hacked off at the height of some wrought-iron fence that was apparently part of the landscape.

Solomonic, you say? Not really. Remember that King Solomon never really intended to cut the baby in half. Plus, that decision at least directly addressed the issue the two warring women had placed before the King and no more – that questions being exactly whose baby the subject infant was. Here, the trial court found that there was nothing wrong with the trees and nothing wrong with the deck, but he ordered the trees trimmed anyway. It’s kind of like being charged with bank robbery, being found not guilty by the jury, but being sentenced to 5-10 years in the pen anyway because the judge thinks you probably cheated on your taxes.

In this dramatic and plastic re-enactment, King Solomon faces a tough decision – how to divide the bambino.

The Court of Appeals thought as little of the trial court’s decision as we do. It made short work of the trial court’s order. Because no one had raised the issue of whether there had been an understanding (or “understanding”) about the trees between the plaintiffs and the prior owners of defendants’ place, the trial court couldn’t find there had been one and enter an order accordingly.

Boussiacos v. Priddy, 2007 WL 4306835 (Cal.App., Dec. 11, 2007). The Boussiacoses sued their next-door neighbors, the Priddys, for statutory nuisance and violation of their mutual homeowners association’s covenants and rules. They alleged the Priddys maintained trees which blocked the Boussiacoses’ view along the parties’ shared property line. The Priddys counter-sued, alleging nuisance and violation of the covenants and rules , because the Boussiacoses had apparently built their deck without the homeowners association’s approval.

Following a bench trial, the trial court found that neither party had proved any of the claims raised in the pleadings. However, the trial court entered judgment anyway, requiring the Priddys to maintain the trees at specified heights in accordance with an “understanding” allegedly entered into by the Boussiacoses and the previous owners of the Priddys’ property. He also ruled that the Boussiacoses could keep their deck. The Priddys appealed, arguing that the trial court couldn’t enter a judgment where it hadn’t found the Boussiacoses’ underlying claims to have any merit.

No pruning for the Priddys

Held: The trial court’s “judgment” was thrown out. The Boussiacoses had asserted only two claims against the Priddys, statutory nuisance and violation of the homeowners’ association’s covenants and rules. Because the trial court concluded on the record that the Boussiacoses failed to prove either claim, the Court of Appeals said, the judge was without any legal authority to make findings regarding an “understanding” between the Boussiacoses and the previous owners of the Priddys’ property. Such an “understanding” wasn’t alleged in the pleadings. The judge could not conclude that this understanding was enforceable against the Priddys, and could not enter a judgment which imposed tree-trimming maintenance obligations on the Priddys.

The Court of Appeals held that a trial court’s award of relief must be based on a pleaded cause of action. Trial courts are more arbiters than gods. Here, the trial court transcended the limits of its authority. Because the record did not show that the enforcement of any agreement between the Boussiacoses and the previous owners of the Priddys’ property was before the court, the trial court erred by awarding the Boussiacoses relief on that basis.

Groovy appellate decision, we must say.

Case of the Day – Friday, June 26, 2015

THE BOUNDARY TREES OF WALTER PRIDDY

You know how free association goes. This being summer and all, we were groovin’ (a 60s term, kiddies) on an old Lovin’ Spoonful hit yesterday, “Summer in the City.”

Although operating without a lot of the mental stimulants that were so freely available during the Summer of Love, we nonetheless started pondering the line “Back of my neck gettin’ dirty and gritty.” “Gritty” rhymes with “pretty,” which rhymes with “Priddy.” And there you have it. Thinking a lot about tree law (as we do), we recalled Walter Priddy.

“Oh, yeah,” you say, “that guy James Thurber wrote about. The secret life and all … The Ben Stiller movie …” No, not ‘Mitty.’ We’re talking ‘Walter Priddy.’ No “secret life” that we know of, but something just as fascinating – a line of boundary trees, an unhappy neighbor, a homeowner’s association, counterclaims. Our meat and potatoes, you know.

It ought to be rather obvious — a court can only decide issues that have been placed before it, and can only order remedies which address the causes of action that it has found to have merit.Courts sometimes lose their way, though, as did the California trial court in today’s case. The Boussiacoses (pronounced “them”) complained that the Priddys’ line of shade trees along their common boundary were a nuisance, messed up the Boussiacoses’ deck, and violated the homeowner’s associations’ rules. The Priddys argued that the trees did no such things, and anyway, the Boussiacoses’ deck had been built without homeowner’s association permission, constituted a nuisance itself, and violated the rules.

The trial court decided that neither side was right. Now your average observer would conclude that the decision meant that the Boussiacoses kept their deck and the Priddys kept their trees. But the trial court decided that the Boussiacoses must have reached an oral “understanding” (and we don’t know how an “understanding” surrounded by quotation marks differs one that isn’t in quotes) with the owners before the Priddys that the trees would be kept trimmed. Now, mind you, the Boussiacoses hadn’t argued that there was such an “understanding,” or that if there was it should be treated like some kind of enforceable agreement. But the trial judge – quite proud of his “solution” – decided that the phantom “understanding” should bind the Priddys anyway. He crafted a decision that let the Boussiacoses keep their deck provided the Priddys got to keep their trees, but the trees had to be hacked off at the height of some wrought-iron fence that was apparently part of the landscape.

Solomonic, you say? Not really. Remember that King Solomon never really intended to cut the baby in half. Plus, that decision at least directly addressed the issue the two warring women had placed before the King and no more – that questions being exactly whose baby the subject infant was. Here, the trial court found that there was nothing wrong with the trees and nothing wrong with the deck, but he ordered the trees trimmed anyway. It’s kind of like being charged with bank robbery, being found not guilty by the jury, but being sentenced to 5-10 years in the pen anyway because the judge thinks you probably cheated on your taxes.

In this dramatic and plastic re-enactment, King Solomon faces a tough decision – how to divide the bambino.

The Court of Appeals thought as little of the trial court’s decision as we do. It made short work of the trial court’s order. Because no one had raised the issue of whether there had been an understanding (or “understanding”) about the trees between the plaintiffs and the prior owners of defendants’ place, the trial court couldn’t find there had been one and enter an order accordingly.

Boussiacos v. Priddy, 2007 WL 4306835 (Cal.App., Dec. 11, 2007). The Boussiacoses sued their next-door neighbors, the Priddys, for statutory nuisance and violation of their mutual homeowners association’s covenants and rules. They alleged the Priddys maintained trees which blocked the Boussiacoses’ view along the parties’ shared property line. The Priddys counter-sued, alleging nuisance and violation of the covenants and rules , because the Boussiacoses had apparently built their deck without the homeowners association’s approval.

Following a bench trial, the trial court found that neither party had proved any of the claims raised in the pleadings. However, the trial court entered judgment anyway, requiring the Priddys to maintain the trees at specified heights in accordance with an “understanding” allegedly entered into by the Boussiacoses and the previous owners of the Priddys’ property. He also ruled that the Boussiacoses could keep their deck. The Priddys appealed, arguing that the trial court couldn’t enter a judgment where it hadn’t found the Boussiacoses’ underlying claims to have any merit.

No pruning for the Priddys

Held: The trial court’s “judgment” was thrown out. The Boussiacoses had asserted only two claims against the Priddys, statutory nuisance and violation of the homeowners’ association’s covenants and rules. Because the trial court concluded on the record that the Boussiacoses failed to prove either claim, the Court of Appeals said, the judge was without any legal authority to make findings regarding an “understanding” between the Boussiacoses and the previous owners of the Priddys’ property. Such an “understanding” wasn’t alleged in the pleadings. The judge could not conclude that this understanding was enforceable against the Priddys, and could not enter a judgment which imposed tree-trimming maintenance obligations on the Priddys.

The Court of Appeals held that a trial court’s award of relief must be based on a pleaded cause of action. Trial courts are more arbiters than gods. Here, the trial court transcended the limits of its authority. Because the record did not show that the enforcement of any agreement between the Boussiacoses and the previous owners of the Priddys’ property was before the court, the trial court erred by awarding the Boussiacoses relief on that basis.

Groovy appellate decision, we must say.

Case of the Day – Monday, June 29, 2015

SKIN OF HER TEETH

We’ve seen several of these mutual acquiescence cases recently, for no apparent reason. Over the years, memories fade … and what usually began as a mistake or a matter of convenience — such as when two parties build a fence that’s not right on the proper boundary line, but decide to let it go — becomes the de facto boundary line.

In today’s case, Ms. Shoemake (she seems to be missing an “r”, doesn’t she?) established that a broken-down fence had become her property’s boundary by mutual acquiescence, but only by the skin of her teeth. The evidence that one of the former neighbors had agreed to the fence as the boundary was remembered only by Ms. Shoemake. The former neighbor remembered the conversation, but not the crucial concession.

The Court of Appeals wasn’t all that sure, but under the relaxed standard of review appellate courts give the fact-finding by trial courts, decided by a 2-1 margin that Mrs. Shoemake had shown then fence line to be a boundary by acquiescence. But a plaintiff shouldn’t try too many times to win on such a tissue-thin showing.

There’s always the chance that someone else might remember it differently. And then, the trial devolves into a “swearing contest.”

Boyster v. Shoemake, 272 S.W.3d 139, 101 Ark.App. 148 (Ark.App. 2008). Teresa Shoemake owned land next to James Boyster. A boundary-line dispute arose in summer 2005 when several of Teresa’s hunting dogs went missing on her property. When she went to the disputed area on her four-wheeler to find the dogs, Ms. Shoemake saw that an old fence that had stood there for about 65 yesars had been cut, rocks had been picked up, and trees had been cut down.

Mrs. Boyster told Teresa that the Boysters had surveyed the property and discovered that the fence line was not on the boundary. Shoemake described the fence as an old, rusty strucgture that had grown into the trees. She said the fence had been on the property her entire life. Her grandmother acquired the property in 1942.

Ms. Shoemake recalled visiting the property often, and she said that in the 1960s, the property on the other side of the fence was used as pasture land. She never saw anyone other than her family use the property south of the fence. Her family’s side of the fence contained trees, which had not been used for anything other than Christmas trees and recreation.

This would have been good advice for Ms.Shoemake and her neighbor …

Ms. Shoemake said that Bryan Tatum, the Boysters’ immediate predecessor in interest, acknowledged the fence line as the boundary line in a conversation with her, and asked if he could dig across her property and install a water line. Others testified that they had always believed the fence line was the boundary. The trial court found that Ms. Shoemake established a boundary line by acquiescence and quieted title to the disputed tract in her name. Boyster appealed.

Held: Ms. Shoemake had proven that the fence line was a boundary by mutual acquiescence. The Court said that mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. However, silent acquiescence is sufficient, as the boundary line is usually inferred from the parties’ conduct over so many years. A boundary by acquiescence may be established without the necessity of a prior dispute or adverse use up to the line. For a party to prove that a boundary line has been established by acquiescence, that party must show that both parties at least tacitly accepted the non-surveyed line as the true boundary line. The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties.

Not the kind of “self-serving” the court had in mind …

Here, Boyster complained that Shoemake failed to present any evidence that Boyster or any of his predecessors in interest considered the fence line to be the boundary. But the Court observed that Shoemake said that Tatum acknowledged the fence as the boundary line. While this was rather “self-serving” testimony, it was within the province of the trial court to find whether Teresa’s evidence was credible. Besides, other testimony from Shoemake and her witnesses established that no one north of the fence used the property south of the fence and that property north of the fence was pasture, while property south of the fence was woods. The Court concluded that Ms. Shoemake had presented sufficient evidence – just barely enough –to establish that Boyster and his predecessors in interest recognized the fence line as the boundary between the two properties.

We’re talking about the great expectations that new homebuyers so often harbor. After all, what are developers selling if not dreams? Real estate people don’t even pretend that they’re doing anything but. Look at the housing bubble.

Well, it’s gone on ever since the dawn of our great nation. Today’s case is an illustration of what can happen in the fallout of a dream. A subdivision planned in Meriden, Connecticut, in the 1930s included a number of beautiful streets that were never built. Nevertheless, the Doucettes and their predecessors had always used what would have been a street to get access to the garage at the back of their narrow lot … at least until their neighbor announced he was going to build a motorcycle gang hangout where the driveway lay, and it would have to go.

The Doucettes didn’t think much of this idea. Matters ended up in court, where the Doucettes were held to have an implied easement which was roughly the size of the proposed street (to the extent handy for their ingress and egress). The neighbor complained that the Doucettes could have built a driveway from the front of the house, but the Court said that didn’t matter. Because buyers are buying the dream, they have a legitimate expectation that streets are going to be built. It’s enough that the original maps as recorded in the land records showed the street and the Doucettes found it “reasonably necessary for the use and normal enjoyment” of their land.

The Doucettes had a serviceable driveway.

Doucette v. Burnham, Not Reported in A.2d, 2007 WL 2363856 (Super.Ct. Conn., Aug. 2, 2007). The Doucettes owned a house on a narrow lot, so narrow that the garage behind the house was sited sideways, with the garage doors facing the property of their neighbor to the east, Mr. Burnham. The lots were on a development that had been laid out in the 1930s, and which planned a street behind the homes to be known as Francis Street. Francis Street was never built, let alone dedicated to public use, but ever since the homes were built, a driveway located along what would have been Francis Street connected the Doucette’s garage to the public thoroughfare, Carl Street. This driveway lay on the part of Burnham’s land that would have been Francis Street (if there had been a Francis Street).

Prior to the dispute, Jeffrey Doucette took care of the portion of Burnham’s land that would have been Francis Street, trimming the trees, removing leaves, seeding, fertilizing and mowing the lawn, plowing the snow, and adding processed stone to the already existing driveway. Over many years, Burnham’s would-be Francis Street land had been used by the Doucettes and others in the neighborhood for parking cars and as an area to walk, play, and ride bicycles.

Burnham, however, wanted to build a clubhouse … you know, just to have a few friends over every now and then.

Friction began when Burnham bought a large neighboring lot and made plans to develop it commercially. He told the Doucettes he planned to build a clubhouse for a motorcycle gang right where their driveway presently lay, a proposal that did not meet with approbation. Burnham proceeded to tear out the wide drive that had been there, straightening it along the centerline of the unbuilt Francis Street (which put a sharp 90-degree turn in the drive) and narrowing it to 8 feet in width with a berm on either side. The Doucettes could have installed a driveway down one side of their home (where there was about 9 feet between the house and the boundary), but they would have had to take out three mature trees to do so, and the drive would have been quite narrow.

The Doucettes sued Burnham, seeking an injunction and a ruling held they had an easement implied by the original plat maps to use the right-of-way that would have been Francis Street.

Held: The Doucettes were entitled to an injunction. The Court held that the issue of whether a map creates an easement by implication is a question of law. Under an equitable estoppel theory, an implied easement exists when the owner reasonably anticipated the use of the streets disclosed on the map that would prove beneficial to him. Also, a lot owner may acquire an implied easement by virtue of a map under an implied covenant theory, if the anticipated use of the street served as an inducement to the purchase of the lot. Under either theory, the owner doesn’t have to show that such an easement is necessary in order for the implication of its existence to arise, but rather only must show that the easement is highly convenient and beneficial for the enjoyment of the portion granted.

The reason that absolute necessity is not essential, the Court held, is because fundamentally such a grant by implication depends on the intention of the parties as shown by the instrument. It is not strictly the necessity for a right of way that creates it. Thus, the Court said, in determining whether an easement by implication has arisen the Court examines (1) the intention of the parties, and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.

Here, the Court said, although the Doucettes could have had access to their garage over their own property by removing three trees and repositioning or restructuring the building, access over the Francis Street route is highly convenient and beneficial to the Doucettes for the normal enjoyment of their land. Based upon a review of the maps and deeds entered into evidence, as well as the circumstances giving rise to the easement in this case, the Court found that the Doucettes had an implied easement for ingress and egress to their garage over Burnham’s land on Francis Street. The rule in Connecticut is that while some benefit to the dominant estate must be shown to establish the right to an easement implied from a map, generally, the easement itself is not limited to such as is reasonably or materially beneficial to the grantee. The court must consider any language on a map or other instrument as a matter of law and consider that legal language in light of the surrounding circumstances involving the facts of the case.

The implied easement in this case arose from documents recorded in the land records. Therefore, the Court held, it must follow the intentions of the grantor of the implied easement at the time it was granted, even though the circumstances have changed significantly since 1939 when the original map was recorded. Based upon the maps, deeds and circumstances that existed at the time Map 388 was created in 1939, the Court said, Francis Street was clearly intended to provide ingress and egress to the Doucettes’ garage, as though it was a public highway. The physical scope of the easement for ingress and egress was clearly established by the description of Francis Street on the map and recorded in the land records. Therefore, to the extent that the Doucettes had used Burnham’s land on Francis Street in the past to access their garage, they had not overburdened their right to do so as the owners of the dominant estate.

However, the Court said, because the original purpose of the easement over Francis Street was to provide ingress and egress to the Doucettes’ garage, the scope of the their use of the easement must be limited to the normal and natural activities that may be conducted on a residential roadway, including parking and for ingress and egress to the Doucette property by foot or bicycle. But roadways, the Court held, are not intended to be used as a playground or for conducting other social activities. Therefore, the easement was not intended to provide the Doucettes with access to a park or to open space, for their general use without limitation, so kids could not be playing on it.